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UC SOUTH 

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SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNL\ 

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GIFT  OF 


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POMEROY'S 

EQUITY  JURISPRUDENCE 

AND 

EQUITABLE  REMEDIES 

SIX  VOLUMES. 


POMEROY'S 

EQUITY   JURISPRUDENCE, 

IN  FOUR   VOLUMES. 

By  JOHN  NORTON  POMEROY,  LL.D. 
THIRD  EDITION,  ANNOTATED  AND  MUCH  ENLARGED, 

AND  SUPPLEMENTED  BY 

A  TREATISE  ON  EQUITABIE  REMEDIES, 

IN  TWO  VOLUMES. 

By  JOHN  NORTON  POMEROY,  Jb. 


SAN  FRANCISCO: 
BANCROFT-WHITNEY     COMPANY, 

IxAW  PUBLISHSaS  AND  LaW  BooSSBIXBRS. 

1905, 


A    TREATISE 


ON 


EQUITABLE   REMEDIES; 


SUPPLEMENTARY   TO 


POMEROY'S  EQUITY  JURISPRUDENCE. 

(INTERPLEADER;  RECEIVERS;  INJUNCTIONS;  REFORMATION 

AND  CANCELLATION;  PARTITION;  QUIETING  TITLE; 

SPECIFIC  PERFORMANCE;  CREDITORS' SUITS; 

SUBROGATION ;    ACCOUNTING ;    ETC.) 


BY 

JOHN  NORTON  POMEROY,  Je.,  A.M.,  LL.B. 


IN   TWO    VOLUMES. 


V01.UME    OI^E. 


SAN    FRANCISCO: 

BANCROFT-WHITNEY     COMPANY, 

Law   Publishers   and   Law  Booksellers. 

1905. 


^6 


T 

Copyright,  1905, 
BT 

JOHN    NORTON     POMEEOY,      Jr. 


San  Francisco: 

Thb  Filmer  Brothers  Electrotype  Company, 

Typographers  and  Stereotypers. 


TO    THE   MEMORY    OF 
MY   FATHER. 


PREFACE. 


The  present  treatise  is  the  outgrowth  of  a  desire  to 
annotate  the  brief  Part  Fourth  of  Pomeroy's  Equity 
Jurisprudence  in  a  way  that  should  secure  to  the  im- 
portant topics  therein  contained  a  treatment  as  ample 
as  is  accorded,  in  that  work,  to  other  parts  of  Equity. 
It  was  my  father's  purpose — prevented  by  his  untimely 
death — to  supplement  his  work  by  the  addition  of  one 
or  more  volumes  on  Equitable  Remedies.  In  choosing 
the  present  form  of  carrying  out  this  design,  rather 
than  that  of  extensive  annotation  of  a  brief  text,  I  have 
had  in  mind,  solely,  the  consideration  of  the  reader's 
convenience.  It  is  hardly  necessary  to  state,  that  no 
pretension  is  made  to  those  high  qualities,  both  of  style 
and  of  original  thought,  which  have  given  to  my  father's 
book  its  important  place  in  our  legal  literature.  My 
point  of  view  has  been  that  of  the  annotator.  Thus, 
I  have  used  to  a  rather  unusual  degree,  at  some  sacrifice 
of  brevity,  the  exact  language  of  the  courts,  rather  than 
my  own;  and  have  retained  nearly  all  the  language  of 
my  father's  brief  text  pertinent  to  the  subjects  treated. 
All  the  authorities  cited  in  his  Part  Fourth  have  been 
re-examined;  but,  as  is  appropriate  to  the  newness  of 
many  of  the  subjects,  the  great  bulk  of  the  citations  is 
made  up  of  very  recent  cases. 

In  the  arrangement  of  the  chapters,  the  order  of  chap- 
ters and  sections  of  the  older  book  has  been  followed, 
with  but  few  variations.  The  paragraphs  relating  to 
the  division  of  the  equitable  remedies  into  logical  groups 
have  been  brought  together,  in  the  introductory  chap- 

(vii) 


viii  PEEFACE. 

ter;  I  have  also  attempted,  in  that  chapter,  to  present 
some  of  the  more  striking  results  of  the  great  mass  of 
confused  and  conflicting  dicta  on  the  subject  of  Laches. 
The  two  remedies  of  Keceivers  and  Injunctions  have 
allotted  to  them  more  than  half  the  space  at  my  com- 
mand, as  is  due  to  the  vast  importance  which  they  have 
assumed  in  very  recent  years.  In  the  chapters  on  Re- 
ceivers, the  grounds  of  the  receiver's  appointment,  and 
the  general  principles  relating  to  his  possession,  etc., 
have  been  treated  with  some  fullness;  while  only  an 
outline  is  attempted  of  the  more  technical  matters  con- 
cerning his  duties  in  the  management  of  the  estate.  In 
the  chapters  on  Injunctions  it  has  been  the  constant 
aim  to  discriminate  between  questions  of  the  propriety 
of  the  equitable  remedy,  and  questions  of  substantive 
or  primary  rights, — an  effort,  at  times,  by  no  means 
easy;  indeed,  as  many  of  these  substantive  rights  are, 
in  practice,  secured  by  the  remedy  of  injunction  only, 
and  are  comparatively  novel  as  subjects  for  judicial 
discussion,  it  has  sometimes  been  found  necessary  to 
examine  and  state  them  at  considerable  length;  see, 
e.  g.y  Chapter  XXVIII,  as  to  injunctions  in  labor  con- 
troversies. 

The  freshness  of  most  of  the  material  relied  upon 
has  prevented  much  assistance  from  existing  text-books ; 
indeed,  the  collection  of  this  material  has  been  an  enor- 
mous labor,  involving  the  study  of  at  least  twice  the 
number  of  cases  finally  selected  for  citation.  I  am 
greatly  indebted  to  my  assistant,  Mr.  E.  S.  Page,  of 
Oakland,  Cal.,  without  whose  help  the  task  of  surveying 
so  wide  a  field  w'ould  have  been  impossible. 

In  conclusion,  I  cannot  refrain,  as  a  student  of  mod- 
ern Equity,  from  adding  my  testimony  of  admiration 
to  the  great  ability  of  many  of  our  contemporary  Amer- 
ican judges  in  dealing  with  the  momentous  and  novel 


PEEFACE.  ix 

questions  which  form  much  of  the  subject-matter  of 
these  volumes.  That  nearly  sixty  independent  juris- 
dictions, largely  within  the  life  of  one  generation,  should 
have  built  up  a  legal  structure  so  sound,  so  original, 
and,  in  the  main,  so  harmonious  in  all  its  parts,  as  that 
of  our  distinctively  American  Equity,  is  surely  one  of 
the  greatest  achievements  in  all  legal  history.  The 
author  may  be  pardoned  if  he  here  repeats  the  convic- 
tion, that  his  father's  labors,  and  the  true  spirit  of 
equity  and  liberality  with  which  they  were  animated, 
have  become  a  chief  source  of  inspiration  to  the  build- 
ers of  this  splendid  structure. 

J.  N.  P.,  Je. 
San  Francisco.  September,  1905. 


TABLE  OF  CONTENTS. 


CONTENTS  OF  VOLUME  L 


CHAPTER  I. 


INTRODUCTION. 

ANALYSIS. 
I. 

19  1-11.     Classification   and   definitions  of  equitable  remedies. 
§  2.     (1)   First  group:   Ancillary  and  provisional  remedies. 
§  3.     (2)   Second   group:  Preventive   remedies. 
§  4.     (3)   Third    group:   Keformation    and    cancellation. 
§S  5—8.     (4)   Fourth    group:   Eemedies  by    which  estates,  interestB, 
and    primary    rights,  either    legal  or    equitable,  are  di- 
rectly declared,  established  or  recovered,  or  the  enjoy- 
ment thereof  fully  restored. 
S  &.    Fourth  group:  First  class. 
§  7.     Fourth  group:  Second  class. 
§  8.     Fourth   group:   Third   class. 

J  9.  (5)  Fifth  group:  Eemedies  by  which  equitable  obliga- 
tions are  specifically  and  directly  enforced. 
I  10.  (6)  Sixth  group:  Remedies  in  which  the  final  relief  is 
pecuniary,  but  is  obtained  by  the  enforcement  of  a  lien 
or  charge  upon  some  specific  property  or  fund. 
I  11,  (7)  Seventh  group:  Eemedies  in  which  the  final  relief  is 
wholly  pecuniary,  and  is  obtained  in  the  form  of  a  gen- 
eral pecuniary  recovery. 

n. 

I  12.     Equitable  remedies  acted  in  personam, 

^  13.     Same — Modem    legislation — Decree    may    transfer    title- 
Abstract  of  statutes. 


xii  TABLE  OF  CONTENTS. 

§  14.  Same — Limitation  on.  effect  of  this  legislation. 

i  15.  Validity  of  decree  based  upon  service  by  publication. 

{  16.  Remedies  in  personam  beyond  the  territorial  jurisdiction. 

§  17.  Same— Limitations  of  the  doctrine. 

i  18.  Injunctions  against  acts  in  foreign  states. 

in. 

fiS  19-36.  Laches. 

§  19.  In  general. 

S  20.  Following  the  analogy  of  statutes  of  limitations. 

S  21.  General  doctrine — Laches  is  prejudicial  delay. 

I  22.  Illustrations — Improvements   or  sales  by  defendant — ^Losa 
or  obscuring  of  defendant's  evidence. 

S  23.  Defense  of    laches  favored  by   United    States  eonrts — In- 
crease in  value  of  the  property  fatal  to  plaintiff's  claim. 

8  24.  Limitation  of  the  general  doctrine  in  case  of  injunction  in 
support  of  strict  legal  right. 

8  25.  Whether  laches  is  imputable  to  the  government. 

It  26-36.  Excuses  for  laches. 

IS  26-28.  (1)  Party's  ignorance  of  his  rights. 

8  27.  Ignorance  of  fraud. 

8  28.  Breach   of   express   continuing   trust. 

8  29.  (2)  Infancy. 

§  30.  (3)  Mental  unsoundness. 

8  31.  (4)  Coverture. 

8  32.  (5)  "When  laches  not  imputed  to  reTersioners. 

8  33.  (6)  When  party  in  possession  not  chargeable  with  lachsfc 

8  34.  (7)  Pendency  of  another  suit  as  excuse  for  dela7. 

8  35.  (8)  Miscellaneous  excuses. 

8  36.  Pleading  excuses  for  laches. 


CHAPTER  IL 


INTERPLEADER. 

ANALYSIS. 

8  8T.  Common-law  interpleader. 

8  38.  Interpleader — General  nature  and  object. 

8  39.  Rationale  of  the  remedy. 

8  40.  Nature  of  the  risk  to  which  plaintiff  is  expossiL 

8  41.  At  what  stage  interpleader  may  bo  brought. 

8  42.  The  claims,  legal  or  equitable. 

8  43.  Essential  elements. 


TABLE  OF  CONTENTS.  xiii 

fS  44—46,     First.     The  same  tiling,  debt  or  duty, 
§  45.     Same;   claims  of  different  amounts. 
S  46.     Same;  illustrations. 

I  47.     Second.     Privity   between    the   opposing   claimants. 
§§  48-51.     Third.     Plaintiff  a  mere  stake-holder. 

I  49.     Same;   admission   or  waiver  of  plaintiff's  claim;   dispute 

as  to  his  liability. 
I  50.     Same;  stake-holder  must  be  plaintiff;  fund  must  be  in  his 
custody. 
Same;  plaintiff  may  have  interest  in  the  legal  question. 
fl  52-57.     Fourth.     No   independent  liability  to  one   claimant. 

Same;   independent  liability  arising  from  nature  of  orig- 
inal relation. 
Same;  bailees  and  agents. 
Same;  tenant  and  landlord. 
Same;  parties  to  contracts. 

Same;  by  receiver;  by  master  of  a  vessel;  by  sherifCt 
Requisites  of  the  bill  of  complaint. 
Affidavit  of  non-collusion;  payment  into  court;  costs. 
Bill  in  the  nature  of  a  bill  of  interpleader. 
I  61.    Interpleader  in  legal  actions. 


CHAPTER  IIL 


$  51. 

52-57. 

S  53. 

1  54. 

S  55. 

i  56. 

i  57. 

f  53. 

1  59. 

f  60. 

II  62-73. 

§  62. 

II  63-67. 

1  64. 

I  65. 

1  66. 

§  67. 

1  68. 

1  69. 

1  70. 

§  71. 

II  72-73. 

1  72. 

1  78. 

APPOINTMENT  OF  RECEIVEES. 

ANALYSIS. 

General  principles  regulating  the  appointment. 
Definition  of  receiver;   a  provisional  remedy.  , 

The  appointment  discretionary. 
Principles    governing    the  court's    discretion;  imminenl 

danger. 
Same;  insolvency  of  defendant. 

Same;  probability  of  plaintiff's  success  in  the  suit. 
Caution  observed  in  making  the  appointment. 
Applicant  must  come  with  "clean  hands"  and  without 

laches. 
Inadequacy  of  legal  remedy. 
Bill  fully  denied  by  answer. 
Must  be  a  suit  pending. 
Statutory  regulation  of  the  appointment. 
The  supreme  court  of  judicature  act,  in  England. 
Statutory  provisions  in  the  United   States. 


xiv  TABLE  OF  CONTENTS. 

SS  74-76.  Class  I. 

i  74.  (1)   Infants'  estates. 

S  75.  (2)   Lunatics'  estates. 

S  76.  (3)  Estates  of  decedents. 

§§  77-87.  Class  IL 

§  77.  In  general. 

SS  78-85.  (1)  Receivers  in  settlement  of  partnership  affairs. 

S  78.  In  general. 

S  79.  Existence  of  partnership  must  be  proved;  and  necessity 

for  dissolution  must  be  shown. 

I  80.  Mere  right  to  dissolution  not  sufficient. 

I  81.  Exclusion  from  management  as  ground. 

i  82.  After  dissolution;  partner  liquidating  under  agreement. 

§  83.  After  dissolution;   no  agreement  for  liquidation. 

§  84.  Eeceiver  on  death  of  partner. 

S  85.  Miscellaneous. 

S  86.  (2)   In  partition  and  other  suits  between  co-owners. 

S  87.  (3)   In  suits  between  conflicting  claimants  of  land. 

IS  88-133.  Class  IIL 

§  88.  In   general. 

SS  89-90.  (1)  Receivers  in   suits  against   trustees,  for   breach   of 
trust. 

I  90.  Same;   assignees  for  benefit  of  creditors. 

§  91.  (2)   In  suits  against  executors  and  administrators. 

S§  92-104.  (3)   Receivers  in  suits  to   enforce  mortgages. 

§  92.  English  rule. 

S  93.  General  rule  in  United  States;  receiver  appointed  when 

security  inadequate  and   mortgagor  insolvent. 

§  94.  Same;   rule  not  followed  in  certain  states. 

S  95.  Other  grounds. 

§  96.  General  considerations  governing  the  appointment. 

§  97.  Effect  of  stipulations  in   the   mortgage. 

i  98.  Time  of  the  appointment. 

^  99.  Effect  of  assignment  of  the  mortgaged  premises;  of  ad- 
ministration thereof;  and  of  homestead  right  therein. 

S  100.  To  what  the  receiver's  title  extends. 

§  101.  Eeceiver  on  application  of  junior  mortgagee. 

S  102.  Same;  right  to  rents  as  between  prior  and  junior  mort- 
gagees. 

§  103.  Receivers  in  behalf  of  others  than  mortgagees. 

§  104.  Chattel  mortgages. 

§S  105-110.  (4)  Suits  to  enforce  liena. 

S  105.  Suits  to  enforce  equitable  Hens;  statutory  liens. 

§  106.  Judgment  creditors'  suits;   in  general. 

i  107.  Same;   receivers  of  debtor's  property  subject  to  prior 
mortgage. 


TABLE  OF  CONTENTS. 


I  108. 


f  109. 

i  110. 

S  111. 

i  112. 

{  113. 

S  114. 

S  115. 

ii 

116-131. 

IS 

116^126. 

§  116. 

i  117. 

S  118. 

I  119. 


i  120. 


1  121. 

f  122. 

i  123. 

§  124. 

i  125. 

i  126. 

S  127. 

if 

128-131. 

§  128. 

II 

129-131. 

1  129. 

i  130. 

I  131. 

1  132. 

S  133. 

§  134. 

II  135-147. 

1  135. 

1  136. 

1  137. 

Same;  nature  of  the  property  aa  affecting  appointment— 

Beceiver  of  rents. 
Same;  miscellaneous  cases. 
Eeceivers  in  proceedings  supplementary  to  execution. 

(5)  In  suits  for  specific  performance,  or  to  enforce 
vendor's  lien. 

(6)  In  behalf  of  unsecured  creditors  before  judgment. 

(7)  In  suits  for  rescission  of  contracts  for  sale  of  land. 

(8)  In  suits  to  enforce  payment  of  annuities. 

(9)  In  suits  for  the  protection  of  remainder-men. 

(10)  Appointment  of  receivers  of  corporations. 
The  inherent  jurisdiction  of  equity. 

In  generaL 

Receivers  of  corporations  cautiously  appointed. 

Beceiver  is  an  ancillary  remedy;  not  appointed  on  the 
petition  of  the  corporation. 

Suit  for  dissolution  and  receiver;  no  inherent  jurisdic- 
tion. 

Stockholders'  suit  for  breach  of  fiduciary  duty  by  di- 
rectors. 

Same;  power,  when  not  exercised. 

Same;  power,  when  exercised. 

Receiver  after  dissolution. 

Dissensions  in  the  governing  body  of  the  corporatioo, 
and  among  the  stockholders. 

Receiver  on  application  of  creditors. 

In  foreclosure  of  mortgages  on  corporate  property. 

Receivers  authorized  by  statutes. 

Railroad  receivers. 

In  general. 

In  foreclosure  of  railroad  mortgages. 

In  general. 

Same;  at  what  stage  appointed. 

Same;  trustee's  right  to  take  possession  on  default  aa 
affecting  the  question  of  appointment. 

(11)  Receivers   in   bankruptcy   proceedings. 

(12)  Alimony  and  maintenance — Miscellaneous  eases. 
Fourth  class. 

Notice  of  the  application  for  appointment. 

A  receiver  is  not  appointed  without  notice  to  the  de- 
fendant. 

Notice  is  necessary  where  appointment  sought  in  pend- 
ing suit. 

To  whom  notice  must  be  given;  waiver;  review  of  em 
parte  appointment. 


TABLE  OF  CONTENTS. 

IS  138-147.     Cases  wherein  notice  is  not  necessary. 

Same;  tendency  to  restriction  of  ex  parte  appointments. 
ti  140-147.     Lack  of    notice   as    affecting  the    appointment  in  the 
various  classes  of  cases. 

In   class  I. 

In  class  II — Partnership — Conflicting  claimants  of  land. 
S§  142-147.     In  class  HI — Persons  in  position  of  trust  or  quasi  trust 

In  mortgage  foreclosure. 

In  creditors'  suits. 

In  suits  by  stockholders  against  corporations. 

In  suits  by  creditors  against  corporations. 

Ex  parte  receivers  of  railroads. 
IS  148-153.     Selection    and    eligibility    of    receiver. 

In  general;  not  disturbed  on  appeaL 

Appointment  of  person  interested  in  the  suit. 

Appointment  of  master  in  chancery;  of  trustee;  of  foU- 
eitor. 

Appointment  of  partner;  of  creditor. 

Appointment  of  corporation  officer. 

Same;  officers  or  stockholders  appointed  from  necessity. 


CHAPTER  IV. 


138- 

-147. 

§ 

139. 

140-147. 

140. 

141. 

142- 

-147. 

143. 

144. 

145. 

146. 

147. 

148- 

-153. 

148. 

149. 

150. 

151. 

152. 

153. 

THE  RECEIVER'S  POSSESSION;  AND  CONFLICTING 
APPOINTMENTS. 

ANALYSIS. 

The  receiver's  possession. 

The  receiver's  possession  is  that  of  the  court. 

Eeceiver's  possession  is  subject  to  existing  liens. 

Same;  instances  of  prior  liens  protected. 

Same;    receiver's   right   to   possession   as   against   prior 

lienor. 
Eeceiver's  title  vests  from  order  of  appointment. 
Contra;  title  dates  from  qualification,  or  from  the  time 

when  he  takes  actual  possession. 
Vesting  of  title  in  supplementary  proceedings. 
How    the    receiver    may    obtain    possession    of   property 

withheld. 
Interference    with    receiver's    possession. 
Claimant  must  apply  to  the  court. 
Interference   with   receiver   a   contempt   of   court. 
S  164.     His  possession  protected  by  injunction. 


SS  154-169. 

S  154. 

§  155. 

§  156. 

S  157. 

§  158. 

S  159. 

S  160. 

S  161. 

is 

163-169. 

§  162. 

.    i  163. 

TABLE  OF  CONTENTS.  xrii 

I  165.     Attachment  against  receiver. 

f  166.     Property  in  receiver's  possession    not    subject    to  Bale 

under  execution. 
S  167.     Same;    illustrations;    execution   sales   under   subsequent, 

and  under  prior,  liens. 
S  168.     Property  in  receiver's  possession  cannot  be  seized  for 

taxes. 
J  169.     Other  forms  of  interference;  strikes;  arrest;  etc. 
S  170.     Conflicting  appointments  of  receivers. 


CHAPTER  V. 


ACTIONS  AGAINST  THE  RECEIVER. 

ANALYSIS. 

li  171-179.     Actions  against  the  receiver. 

§  171.  General  rule;  leave  must  be  obtained  from  the  appoint- 
ing court. 

§  172.     Whether  leave  to  sue  is  a  "jurisdictional  fact," 

S  173.  Suits  against  federal  receivers;  rule  now  modified  by 
act  of  Congress. 

I  174.  Same;  such  suits  are  "subject  to  the  general  equity 
jurisdiction"  of  the  court  of  the  appointment. 

i  175.  Leave  of  court  not  necessary  where  receiver  is  a  tres- 
passer. 

S  176.     Leave  to  sue  receiver,  when  granted. 

I  177.     Practice;  whether  by  petition  or  independent  action. 

§  178.     Eeceiver's  right  to  appeal. 

S  179.  Judgment  against  receiver,  how  enforced;  as  against 
successor  in  office;  in  case  of  his  discharge. 


CHAPTER  VI. 


SUITS  BY  THE  RECEIVER. 

ANALYSIS. 

I  180.  Suits  by  receivers;  leave  of  court  necessary, 

§  181.  Suits  by  receiver,  in  whose  name. 

S  182.  Appointment  cannot  be  questioned  collaterally. 

S  183.  Pleading  in  suit  by  receiver;  must  allege  his  authority. 

i  184.  Same;  appointment  and  authority,  how  alleged. 


TABLE  OF  CONTENTS. 

Proof  by  receiver  of  his  appointment  and  powers. 
Beceiver   is   subject  to   the   same  defenses  as  the   one 
whom  he  represents. 
SS  187-189.     Set-ofiE  against  the  receiver. 
In  general. 

Set-off  by  bank  depositor. 

Set-off    against    corporation    receiver,    in    suit     against 
stockholders. 
i  190.     Statutory  receiver   of  insolvent  corporation    represents 

its  creditors. 
S  191.     Keceiver  in  supplementary  proceedings,  how  far  a  repre- 
sentative of  creditors. 


CHAPTER  VII. 


§ 

185. 

s 

186. 

187- 

-189. 

s 

187. 

§ 

188. 

§ 

189. 

RECEIVER'S   RELATION  TO   PENDING  SUITS;  AND 
WHEN  IS  HE  A  NECESSARY  PARTY. 

ANALYSIS. 

§  192.     Substitution  of  receiver  as  plaintiff  in  pending  actions;  effect 

of  his  appointment  on  pending  actions. 
§  193.     Substitution  of  receiver  as  defendant  in  pending  actions. 
S  194.     Intervention    by    receivers. 

§  195.     Effect  of  change  of  receivers  on  pending  actions. 
§  196.     When  is  receiver  a  necessary  party. 


CHAPTER  VIII. 


RECEIVERS— MANAGEMENT   AND  DISPOSITION   OF 
PROPERTY. 

ANALYSIS. 

§  197.  In  general. 

§  198.  Discretion  allowed  to  managing  receiyer. 

§  199.  Duty  to  obtain  instructions. 

§  200.  Duty  to  collect  assets. 

S§  201-203.  Eight  to  continue  business. 

§  202.  Executory  contracts. 

§  203.  Existing  leases. 

§  204.  Eight  to  make  contracts. 

S  205.  Eights  in  relation  to  employees. 


.  TABLE  OF  CONTENTS. 

(  206.  Eight  to  employ  attorneys. 

{  207.  Eight  to  make  repairs,  improvements,  eto* 

§  208.  Eight  to  lease  property. 

§S  209-213.  Eight  to  sell  property. 

§  209.  Sales— In  general. 

i  210.  Sale  is  subject  to  confirmation* 

§  211.  Personal  property. 

§  212.  Sale  is  subject  to  existing  liens. 

§  213.  Effect  of  reversal  of  order  appointing  receiverfl. 

{9  214-216.  Eeceivers'  certificates. 

S  214.  In  general. 

S  215.  Nature  of  certificates. 

§  216.  Purposes  for  which  certificates  may  be  issued. 

i  217.  Liability  for  fraud,  negligence,  etc 


CHAPTER  IX. 


§  218. 

{S 

219-237. 

9  219. 

9  220. 

9  221. 

§  222. 

9  223. 

9S 

224-237. 

9  224. 

9  225. 

9  226. 

9  227. 

9S 

228,  229. 

9  229. 

S9  230,  231. 

9  231. 

9  232. 

9  233. 

19 

234-237. 

9  234. 

S  235. 

9  236. 

9  237. 

EECEIYERS ;  CLAIMS  AND  ALLOWANCES. 


ANALYSIS. 

Duties  and  rights  of  receiver  in  regard  to  claims. 

Priority  of  claims. 

Taxes. 

Expenses  of  receivership. 

What  are  proper  expenses. 

Expenses   of   continuing  business. 

Same;  liability  for  torts. 

Claims     arising      prior      to     receivership — "Preferred 

claims. ' ' 
Statement  and  rationale  of  doctrine. 
Growth    of    the    doctrine. 
To  what  receiverships  the  doctrine  applies. 
Time  within  which  debts  must   have  been  eontraetedi 

Labor  claims. 
Extent  of  this  class. 

Claims  for  supplies. 

No  priority  when  credit  given. 

Claims    for    repairs — Construction — Beconstruction. 

Miscellaneous   claims. 

Claims  denied  priority. 

Money    loaned. 

Eental   of  leased  lines. 

Car    rentals — Track   rentals. 

Personal    injuries. 


<i 

238-243. 

S  238. 

S  239. 

§  240. 

§  241, 

S  242. 

S  243. 

§  244. 

5  245. 

TABLE  OF  CONTENTS, 

Compensation  of  receiver. 

In   general. 

Discretion   as   to    amount. 

Matters  considered  in  determining  amount. 

Effect    of    revocation    or    reversal    of   order    appointing 

receiver. 
Effect    of    agreement. 
Effect  of  adjudication  of  bankruptcy. 
Payment  of  costs  when  fund  not  sufficient. 
Payment  of  costs  where  receivership  proceedings  Toid. 

CHAPTER  X. 


EEMOVAL  AND  DISCHAEGE  OF  EECEIVERS. 

ANALYBIB. 

I  246.     Removal  of  receiver. 
S  247.     Discharge  of  receiver. 

CHAPTER  XI. 


FOKEIGN  EECEIVEES;  ANCILLAEY  EECEIVERS. 

ANALYSIS. 

S  248.  General  tendency  toward  recognition  of  rights  of  for- 
eign receiver. 

{  249.  Eight  of  foreign  receiver  to  sue  outside  of  jurisdiction 
of  court  of  appointment  is  only  recognized  where 
that  court  has  conferred  the  power. 

8  250.  Eight  of  foreign  receiver  to  sue  not  dependent  on  ex- 
istence of  cause  of  action  in  state  exercising  comity. 

I  251.     Eight  of  attaching  creditors  against  foreign  receiver. 

S  252.  Eight  of  attaching  creditors  with  reference  to  citizen- 
ship or  residence. 

§  253.  Eights  of  foreign  receivers  against  subsequent  attach- 
ing creditors. 

§  254.  Same;  as  affected  by  question  of  citizenship  or  resi- 
dence. 

§  255,  Actions  by  foreign  receiver  not  dependent  on  comity; 
(1)  Property  rights. 

I  256.     Same;   (2)   Eights  by  contract. 

I  257.  Power  of  court  of  appointment  over  receiver  and  other 
parties. 


TABLE  OF  CONTENTS.  zzi 

SS  258-261.  Ancillary  receivers. 

§  258.  Appointment. 

§  259.  Administration  of  the  fund. 

§  260.  Same;  how  far  conclusive  on  primary  recelyer. 

§  261.  Surrender  of  fund. 


CHAPTER  XIL 


INJUNCTIONS;  GENERAL  PRINCIPLES— INJUNC- 
TION TO  PROTECT  EQUITABLE  ESTATES  AND 
INTERESTS. 

ANALYSIS. 

§  262.  General  nature  and  object — Abstract  of  statutes. 

§  263.  Fundamental  principle. 

§  264.  Preliminary  or  interlocutory  injunctions. 

S§  265-269.  Injunctions   to    protect   purely   equitable   estates   or  in- 
terests, and  in  aid  of  purely  equitable  remedies. 

§  266.  Instances;  to  restrain  breaches  of  trust. 

§  267.  To  restrain  violation  of  confidence. 

§  268.  Same;  disclosure  of  trade  secrets. 

i  269.  Other  instances. 


CHAPTER  XIII. 


INJUNCTIONS   TO    PREVENT   THE   VIOLATION   OP 
CONTRACTS. 

ANALYSIS. 

I  270.  Injunctions  to  prevent  violation  of  contracts — In  general. 

§  271.  Principles  regulating  specific  performance  apply. 

§§  272-284.  Eestrictive  covenants*— Equitable  easements. 

§  273.  Questions  stated. 

§  274.  Action   by   grantor. 

§  275.  Action  by  purchaser  of  other  land. 

§  276.  Eestrictions  as  to  use  of  property. 

§  277.  Eestrictions   which    are    enforceable. 

§   278.  Liability  of  grantor. 

§  279.  Effect  of  change  of  character  of  neighborhood, 

§  280.  Complainant   must    come   into   court   with   clean   hands'— 

Acquiescence. 

§  281.  Eemedy  independent  of  amount  of  injury. 


§  282. 

§  283. 

§  284. 

{§  285-287. 

§  286. 

§  287. 

|§  288-291. 

§  289. 

§  290. 

§  291. 

§§  292-299. 

§  293. 

S  294. 

§  295. 

§  296. 

§  297. 

{  298. 

§  299. 

i  300. 

TABLE  OF  CONTENTS. 

Actual  notice  not  necessary. 

Mandatory  injunctions. 

Extension  of  the  doctrine — Application  to  personal  prop- 
erty. 

Injunctions  against  breaches  of  covenant  between  land- 
lord  and   tenant. 

Same — Eights  of  lessee. 

Same — Eights    of   sub-tenant. 
Contracts  for  personal  service  of  a  special  character. 

Same:  Lumley  v.  Wagner — Whether  stipulation  must  be 
expressly  negative  in  form. 

Same — No  relief  upon  contracts  for  ordinary  services- 
Limitations. 

Other  agreements,  generally  negative  in  their  nature. 

Agreements  not  to  carry  on  a  trade,  express  or  implied— 
Sale  of  good-will. 

Same — Injunctions  against  employees. 

Agreements  not  to  compete. 

Contracts  conferring  an  exclusive  right. 

Miscellaneous  agreements,  expressly  negative. 

Miscellaneous  agreements,  not  expressly  negative. 

Adequate  remedy  at  law. 

Effect   of  provisions  for  penalties  and  liquidated   dam- 
ages. 


CHAPTER  XIV. 


INJUNCTIONS  AGAINST  CORPORATIONS  AND  THEIR 
OFFICERS. 

ANALYSIS. 

Ultra  vires  acts— Questions  stated. 

Suits  by  the  attorney-generaL 

Suits  by  stockholders. 

Suits  by  third  parties. 

Suits   by    stockholders   against    directors    for    wrongful 

dealing  with  corporate  property. 
Other  suits  by  stockholders. 

No  injunction  to  determine  title  to  corporate  office. 
Existence  of  a  corporation  cannot  be  challenged   by  in- 
junction— Injunction  in   connection  with  receivership. 


i§  301-304. 

§  302. 

S  303. 

§  304. 

§  305. 

§  306. 

§  307. 

S  308. 

TABLE  OF  CONTENTS.  '      xxiii 


CHAPTER  XV. 


INJUNCTIONS  RELATING  TO  VOLUNTARY  ASSOCIA- 
TIONS AND  NON-STOCK  CORPORATIONS. 

ANALYSIS. 
§   309.     In  general. 
§  310.     Expulsion  of  members. 
§  311.     Same — Injury  to  property. 
§  312.     Expulsion  from  religious  organizations. 
§  313.     Expulsion  from  other  societies. 
§  314.     Protection  of  church  property  rights. 

§  315.     Same — When  rights  depend  upon  decision  of  superior  church 
tribunal. 


CHAPTER  XVI. 


INJUNCTIONS  BETWEEN  MORTGAGOR  AND 
MORTGAGEE. 

ANALYSIS. 

S  316.  Injunction  against  sale  under  power  in  mortgage  or  trust 
deed. 

§  317.     Same;  in  case  of  usury. 

S  318.  Same;  payment  by  the  mortgagor,  or  necessity  for  an  account- 
ing. 

§  319.     Injunction  on  behalf  of  the  mortgagee. 

S  320.     Injunctions  relating  to  chattel  mortgages. 


CHAPTER  XVII. 

INJUNCTIONS  AGAINST  PUBLIC  OFFICERS. 

ANALYSIS. 

§  321.  Public   officers — In   general. 

§  322.  Same — When  relief  granted. 

§  323.  Same — When   not  granted. 

§  324.  Political    acts, 

§  325.  Federal    officers. 

§  326.  State  officers — Tax-payers'  suits. 

§  327.  No  relief  when,  in  effect,  against  state. 


ZXIT 


TABLE  OF  CONTEiNTS. 


§  328.  Injunctions   against   executive    officers 

§  329.  Discretionary  acts. 

§  330.  Suits  by  officers  against  other  officers. 

§  331.  Elections. 

§  332.  Same — Continued. 

§  333.  Title  to  public  office. 

§  334.  Same — Continued. 

§  335.  Possession  of  office  protected. 

§  336.  Payment  of  salaries. 

§  337.  Removal  of  officers. 

S  338.  Action  of  de  facto  officers. 


CHAPTER  XVIII. 


INJUNCTIOXS     AGAINST     MUNICIPAL     CORPORA- 
TIONS     AND      THEIR      OFFICERS. 

ANALYSIS. 

8(  339-343.     Limitations  on  the  exercise  of  the  remedy, 

S  339.     Injunction  against  legislative  acts — Cases  examined. 

{  340.     Same — Injunctions  generally  refused. 

S  341.     Same — Exceptions  to  the  general  rule. 

S  342.     Second  limitation;  acts  within  discretionary  powers  not 

interfered  with. 
§  343.     No  injunction  to  test  the  validity  of  municipal  organ- 
ization. 
S§  344-353.     Tax-payers'  suits. 
§  344.     General  principle. 
§  345.     Rationale  of  the  doctrine. 
§  346.     New  York  rule. 
§  347.     The  rule  in  Massachusetts. 
§  348.     The  rule  in  Ohio. 
8§  349-353.     Illustrations  of  the  general  principle. 
§  349.     Municipal  aid  bonds. 
§  350,     Injunctions  against  exceeding  constitutional  or  statutory 

limits  of  indebtedness. 
§  351.     Awarding  contracts — "Lowest  bidder" — Discriminating 

in  favor  of  union  labor. 
§  352.     Injunctions  against  removal  of  county  seats, 
§  353.     Miscellaneous  illustrations. 
§  354.     Relief   against   ordinances   injuring   the   individual   in   a 

capacity   other   than    that   of   tax-payer. 
S  355.     Injunctions  against  wrongful  acts  in  generaL 


TABLE  OF  CONTENTSw 


CHAPTER  XIX. 


INJUNCTION  AGAINST  TAXATION;  AND   AGAINST 
SPECIAL   OR  LOCAL  ASSESSMENTS. 

ANALYSIS. 

§  356.  In  general:— Two  classes  of  Btatea. 

S  357.  Principles    of    general    application — Irregnlarities — Ten- 
der. 

19  358-362.  First    type. 

S  359.  Same;  Inadequacj  of  the  legal  remedj — Taxes  on  per- 
sonal   property. 

§  360.  Same;  Fraud. 

S  361.  Same;    Multiplicity    of    Ruita. 

§  362.  Same;  Cloud  on  title. 

S  363.  Second   type. 

§  364.  Special  or  local  assessmenta. 

S§  365-378.  United   States   courts. 

S  365.  Federal    taxes. 

§  366.  State  taxes;  federal  jurisdiction. 

§  367.  Adequate  remedy  in   state  courts. 

SS  368-375.  Grounds  of  the  equitable  jurisdiction, 

§  369.  Personal   property. 

S  370.  Irreparable  injury. 

S  371.  "Valuation  resulting  in  unjust  discrimination 

S  372.  Multiplicity    of    suits. 

§  373.  Cloud  on  title. 

S  374.  State  tax  in  violation  of  contract. 

S  375.  Injunction   warranted    by   state    laws. 

§  376.  Tender. 

S  377.  Property  in  hands  of  federal  rp^ieiver. 

§  378.  Special   assessments. 

§  379.  Alabama. 

§  380.  Arizona. 

S§  381,  382.  Arkansas. 

§  382.  Special   assessments, 

§§  383,384.  California. 

§  384.  Special   assessment!, 

SS  385,386.  Colorado. 

§  386.  Special   assessments, 

§  387.  Connecticut. 

§  388.  Delaware. 

§  389.  Florida. 


TABLE  OF  CONTENTS. 


i§  390,391.  Georgia. 

§  391.  Special   assessments. 

§  392.  Idaho. 

i§  393-399.  Illinois. 

§  393.  In    general. 

§  394.  Illegality. 

S  395.  Illegal  municipal  taxes. 

§  396.  Illegal  taxes;   parties  plaintiflf. 

§  397.  Exempt    property. 

§  398.  Fraudulent  increase  of  assessmea^ 

§  399.  Special    or    local    assessments. 

§S  400^02.  Indiana. 

§  401.  Tender  of  legal  tax, 

§  402.  Special   assessments. 

§§  403,404.  Iowa. 

§  404.  Special   assessments. 

§§  405-408.  Kansas. 

§  406.  Parties. 

§  407.  Tender. 

§  408.  Special    assessments. 

§  409.  Kentucky. 

§  410.  Louisiana. 

§  411.  Maine. 

§§  412,413.  Maryland. 

§  413  Special   assessments. 

§  414.  Massachusetts. 

§§  415,416.  Michigan. 

§  416.  Special   assessments. 

5§  417,418.  Minnesota. 

§  418.  Special   assessments. 

§  419.  Mississippi. 

§§  420,421,  Missouri. 

§  421.  Special  assessments. 

§  422.  Montana. 

S§  423,424.  Nebraska. 

§  424.  Special  assessments, 

§  425.  Nevada. 

§  426.  New   Hampshire. 

§  427.  New   Jersey. 

§  428.  New  Mexico. 

§§  429-431.  New    York. 

§  430.  Cloud   on  title. 

§  431.  Special   assessments 

S§  432,433.  North    Carolina, 

§  433.  Special    assessments, 
§  434.     North     Dakota. 


TABLE  OF  CONTENTa 


§S  435,436. 

Ohio. 

§  436. 

Special   assessments. 

§§  437-439. 

Oklahoma, 

§  438. 

Increase   of  assessment. 

§  439. 

Tender. 

§§  440,441. 

Oregon. 

§  441. 

Special   assessments. 

§  442. 

Pennsylvania. 

§  443. 

Ehode   Island. 

§  444. 

South    Carolina, 

§§  445,446. 

South   Dakota. 

§  446. 

Special   assessments. 

§  447. 

Tennessee. 

§S  448,449. 

Texas. 

§  449. 

Special   assessments. 

§  450. 

Utah. 

§§  451,452. 

Vermont. 

§  452. 

Special   assessments. 

§  453. 

Virginia. 

§5  454,455. 

Washington. 

§  455. 

Special   assessments. 

§§  456,457. 

West   Virginia. 

§  457. 

Special   assessments. 

S§  458-463. 

Wisconsin. 

§  459. 

Defects  going  to  the  validity  of  the  assessment. 

§  460. 

Defects  not  going  to  the  validity  of  the  assessment. 

§  461. 

Cloud    on    title. 

§  462. 

Payment    or   tender. 

§  463. 

Special   assessments. 

S  464. 

Wyoming, 

CHAPTER  XX. 


INJUNCTION  AGAINST  EXERCISE  OF  THE  POWEE 
OF  EMINENT  DOMAIN. 

ANALYSIS. 

§  465.  General    principle. 

I  466.  No  injunction  against  prosecution  of  condemnation  pro- 
ceedings, 

§§  467-470.  Eailroads  in  streets  and  highways. 

§  468.  Same — Fee  of  street  in  abutting  owner. 

§  469.  Same — Fee  of  street  in  municipality. 

§  470.  Same;    New    York    rule;    Elevated    Eailroad    cases. 


i  TABLE  OF  CONTENTS. 

§  471.     Changing   grade   of   streets;    other   uses   of   streeta;   t»- 

cating   streets. 
S  472.     Acquiescence. 
S  473.     Assessment   of   damages  by  the  court,   with  injunction 

as  alternative  to  their  payment. 


CHAPTER  XXI. 


INJUNCTIONS  TO  PEEVENT  OR  RESTRAIN  THE 
COMMISSION  OF  TORTS  IN  GENERAL:  TO  RE- 
STRAIN CRIMINAL  ACTS. 

ANALYSIS. 

{  474.  The  estates  and   interests  generally  legaL 

§  475.  Kinds  and  classes  of  torts  restrained. 

§  476.  Criminal  acts— In  general. 

§  477.  Applications   of  the   principle. 

§  478.  Same — Public   nuisance — Suits   by   individuals. 

§  479.  Same— Same — Suit    by    government. 

S  480.  Same — Eight    of    government    to    enjoin    acts    analogous    to 

nuisance. 

S  481.  Exception— Libel. 


CHAPTER  XXII. 


INJUNCTION  AGAINST  WASTE. 

ANALYSIS. 

§  482.  Origin  and  nature  of  the  jurisdiction. 

IS  483-490.  Extent    of    equity    jurisdiction. 

§  483.  Legal  waste. 

§  484.  Waste   must  be  threatened. 

§  485.  Legal  waste  which  is  not  subject  to  injunction. 

§  486.  Must   the  injury  be  irreparable! 

§  487.  Plaintiff's    title. 

§  488.  Title  in  dispute. 

§  489.  Equitable  waste— Definition. 

§  490.  Extent  of  jurisdiction. 

§  491.  Relief  against  waste  in  equity. 

5  492.  Parties  for  and  against  whom  injunction  will  issue. 


TABLE  Oi^  CONTENTS. 


CHAPTER  XXIIL 


INJUNCTIONS  AGAINST  TRESPASS. 

ANALTSIS. 

Nature  of  the  jurisdiction. 
ii  494-499.     Extent  of  the  jurisdiction. 

Irreparable  injury. 

Continuous  or  repeated  trespasses. 

Insolvency  of  defendant. 

Miscellaneous  cases. 

Eminent  domain. 

What  plaintiff  must  allege. 

Threatened  trespass. 
SI  502-506.     Dispute  as  to  title. 

General  principles. 

Defendant    in    possession     enjoined     from     destmetlT* 
acts. 

Defendant  not  enjoined  from  mere  use. 

Plaintiff  in   possession. 

Establishment  of  title. 

Possession,  when  given  by  injunction. 

The  balance  of  injury. 

Personal  remedy  open  to  plaintiff. 

Relief  given. 

Estoppel,  laches,  acquiescence. 


CHAPTER  XXIV. 


§  493. 

494-499. 

§  495. 

§  496. 

§  497. 

S  498. 

fi  499. 

§  500. 

§  501. 

502-506. 

S  502. 

S  503. 

i  504. 

§  505. 

S  506. 

§  507. 

§  508. 

i  509. 

<  510. 

1  511. 

INJUNCTION  AGAINST  NUISANCE. 

ANALYSIS. 

I  512.  Nature  of  the  jurisdiction. 

{  513.  When  the  legal  remedy  is  adequate. 

If  514-517.  Extent  of  the  jurisdiction. 

S  514.  Irreparable  and   continuing  or  recurring  nuisances. 

§  515.  Illustrations. 

5  516.  Injunctions   on   sole   ground   of  preventing  multiplicity 

of  suits. 

S  517.  Miscellaneous   grounds   of   jurisdiction. 

S  518.  What  the  plaintiff  must  allege. 


TABLE  OF  CONTENTS. 

J5  519-522.     Previous  trial  at  law. 

Not  necessary  to  granting  of  temporary  injunction^ 

Nor  in  all  cases  of  permanent  injunctions. 

Cases  in  whicli  it  is  important. 
i§  523-525.     Threatened    nuisance. 

Imminent  danger. 

Illustrations. 

Must  threatened  injury  be  irreparablef 

Damage  necessary  to  justify  an  injunction. 

Criminal  and  statutory  nuisances. 

The  defendant's  motive. 
S§  529-531.     The  balance  of  injury. 

Balance  between  private  parties. 

Balance  between  the  plaintiff  and  the  publie. 

Nuisance  easily  avoided  by  the  plaintiff. 
{§  533-536.     Relief  given. 

Mandatory   injunctions. 

Form  of  injunction. 

Temporary    injunctions. 

Complete  relief. 

Estoppel,   acquiescence,   laches. 

Parties. 

Reasonable  use  not  a  defense. 

Nor  the  fact  that  other  causes  contributiw 

Legalized  nuisances. 

Public  nuisances. 


519- 

-522. 

§ 

520. 

§ 

521. 

§ 

522. 

523- 

-525. 

§ 

523. 

§ 

524. 

§ 

525. 

§ 

526. 

§ 

527. 

§ 

528. 

529- 

-531. 

§ 

530. 

§• 

531. 

§ 

532. 

533- 

-536. 

§ 

533. 

§ 

534. 

§ 

535. 

536. 

537. 

538. 

539. 

540. 

541. 

542. 

A   TREATISE 


ON 


EQUITABLE   REMEDIES. 


EQUITABLE    REMEDIES 


CHAPTER  L 


INTEODUCTION. 

ANALYSIS. 
I. 

is  1-11.     Classification   and   definitions  of  equitable  remedies, 
§  2.     (1)  First  group:  Ancillary  and  provisional  remedies. 
S  3.     (2)  Second  group:  Preventive  remedies. 
f  4.     (3)  Third   group:  Eeformation   and   cancellation. 
§§   5-8.     (4)  Fourth    group:  Eemedies  by    which  estates,  interests, 
and    primary    rights,  either    legal  or    equitable,  are  di- 
rectly declared,  established  or  recovered,  or  the  enjoy- 
ment thereof  fully  restored. 
§  61.    Fourth  group:  First  class. 
S  7.     Fourth  group:  Second  class. 
S  8.     Fourth   group:   Third  class. 

f  9.  (5)  Fifth  group:  Remedies  by  which  equitable  obliga- 
tions are  specifically  and  directly  enforced. 
I  10.  (6)  Sixth  group:  Remedies  in  which  the  final  relief  is 
pecuniary,  but  is  obtained  by  the  enforcement  of  a  lien 
or  charge  upon  some  specific  property  or  fund, 
f  11.  (7)  Seventh  group:  Eemedies  in  which  the  final  relief  L" 
wholly  pecuniary,  and  is  obtained  in  the  form  of  a  gen- 
eral pecuniary  recovery. 

n. 

I  12.    Equitable  remedies  acted  in  personam^ 

I  13.    Same — Modem    legislation — Decree    may   transfer   title- 
Abstract  of  statutes. 
Equitable  Eemedies,  Vol.  I— 1 


i  1  EQUITABLE  REMEDIES.  2 

Same — Limitation   on   effect   of  this  legislation. 
Validity  of  decree  based  upon  service  by  publication. 
Eemedies  in  personam  beyond  the  territorial  jurifldictioiu 
Same — Limitations  of  the  doctrine. 
Injunctions  against  acts  in  foreign  states. 

m. 

Laches. 

In  generaL 

Following  the  analogy  of  statutes  of  limitations. 

General  doctrine — Laches  is  prejudicial  delay. 

Illustrations — Improvements  or  sales  by  defendant — ^Loss 
or   obscuring  of   defendant's   evidence. 

Defense  of  laches  favored  by  United  States  courts — In- 
crease in  value  of  the  property  fatal  to  plaintiff's  claim. 

Limitation  of  the  general  doctrine  in  case  of  injunction  in 
support  of  strict  legal  right. 

Whether  laches  is  imputable  to  the  government.  • 

Excuses  for  laches. 

(1)  Party's  ignorance  of  his  rights. 
Ignorance  of  fraud. 
Breach   of   express   continuing   trust. 

(2)  Infancy. 

(3)  Mental  unsoundness. 

(4)  Coverture. 

(5)  When  laches  not  imputed  to  reversioners. 

(6)  When  party  in  possession  not  chargeable  with  laches. 

(7)  Pendency  of  another  suit  as  excuse  for  delay, 

(8)  Miscellaneous  excuses. 
i  36.    Pleading  excuses  for  laches. 


{  1.  Classification  and  Definitions  of  Eqnitable  Remedies. 
It  is  the  chief  purpose  of  this  introductory  chapter  to 
treat,  somewhat  briefly,  of  the  maxim,  "Equity  acts  in 
personam"  and  of  the  effect  of  decrees  in  equity;  and 
to  present  the  more  important  results  of  the  recent 
cases  on  the  doctrine  of  Laches.  Other  general  prin- 
ciples and  maxims  which  affect  the  whole  range  of 
equitable  remedies  have  either  been  sufficiently  treated 
in  the  work  to  which  the  present  volumes  are  a  supple- 


§  14. 

§  15. 

i  16. 

8  17. 

5  18. 

i§  13-36. 

§  19. 

S  20. 

§  21. 

§  22. 

i  23. 

1  24. 

§  25. 

ss 

26-36. 

f§ 

26-28. 

S  27. 

S  28. 

i  29. 

§  30. 

8  3L 

8  32. 

8  33. 

8  34. 

8  35. 

3  INTEODUCTION.  {§2,3 

ment,  or  may  be  more  appropriately  taken  up  in  their 
application  to  the  individual  remedies.  But  before 
taking  up  these  matters,  the  author  conceives  that  it 
may  serve  the  convenience  of  many  readers  to  collect 
and  compare  Professor  Pomeroy's  classification  and  defi- 
nitions of  the  various  equitable  remedies,  as  set  forth 
in  Part  IV  of  his  work,  with  the  several  tentative  classi- 
fications of  the  same  subject-matter  made  in  the  earlier 
chapters  of  that  work.^ 

§  2.  (1)  First  Group:  Ancillary  and  Provisional  Reme- 
dies— "The  first  class  embraces  those  remedies  which 
are  wholly  ancillary  and  provisional."  "The  distin- 
guishing characteristic  of  the  remedies  belonging  to 
this  group  is,  that  they  determine  no  primary  rights, 
and  grant  no  final  reliefs,  either  directly  or  indirectly. 
They  are,  in  fact,  instruments  and  means  by  which  the 
court  is  enabled  more  conveniently  and  perfectly  to 
adjudicate  upon  the  ultimate  rights  and  interests  of  the 
parties,  and  to  award  the  final  reliefs,  in  the  further 
judicial  proceedings  to  which  they  are  auxiliary,  and  of 
which  they  are  really  the  preliminary  stage."  This 
class  includes  interpleader  and  receivers.'^ 

§  3.  (2)  Second  Group:  Preventive  Remedies "Preven- 
tive remedies,  or  those  by  which  a  violation  of  a  primary 
right  is  prevented  before  the  threatened  injury  is  done, 
or  by  which  the  further  violation  is  prevented  after  the 
injury  has  been  partially  effected,  so  that  some  other 
relief  for  the  wrong  actually  accomplished  can  be 
granted.     The  ordinary  injunction,  whether  final  or  pre- 

1  Pom.  Eq.  Jur.,  §§  110,  112,  171,  185-189. 

2  Pom.  Eq.  Jur.,   §§   171,  1316,  1319.     Section  171  includes  in  this 
group,  also,  "the  ordinary  preventive  injunction." 


f  4  EQUITABLE  REMEDIES.  4 

liminary,  is  the  familiar  example  of  this  class ;  the  man- 
datory injunction  is  essentially  a  restorative  remedy."* 

§  4.  (3)  Third  Group:  Reformation  and  Cancellation — 
"The  ultimate  object  of  the  remedies  belonging  to  this 
group  is  the  establishment  or  protection  of  interests, 
estates,  and  primary  rights;  but  this  object  is  accom- 
plished indirectly.  While  these  remedies  are  not  so 
completely  ancillary  as  interpleader  and  receivership, 
yet  they  are  to  a  certain  extent  auxiliary.  They  do  not, 
like  a  specific  performance,  or  the  execution  of  a  trust, 
or  an  assignment  of  dower,  or  partition  of  land,  operate 
directly  and  immediately  to  establish  the  plaintiff's  title, 
and  to  confer  upon  him  the  complete  dominion  over 
his  estate — the  ultimate  relief  which  he  seeks.  Their 
effect  in  establishing  his  ultimate  dominion  is  indirect. 
They  are  often  used  as  the  preparatory  step  which  en- 
ables him  to  obtain,  sometimes  in  the  same  action,  and 
sometimes  in  a  subsequent  suit,  the  ultimate  remedy 
which  finally  establishes  his  rights  or  obligations,  or 
restores  him  to  the  full  enjoyment  of  his  estate.  The 
reformation  of  a  policy  of  insurance  is  not  a  final  rem- 
edy; but  it  establishes  the  real  contract,  and  thus  en- 
ables the  assured  to  recover  the  amount  actually  due 
according  to  the  terms  of  that  contract.  The  reforma- 
tion of  a  deed  does  not  directly  restore  the  grantee  to 
the  dominion  and  possession  of  the  land  which  had  been 
omitted;  but  it  places  him  in  a  position  which  enables 
him,  if  necessary,  to  assert  his  dominion  and  recover 
the  possession.  The  cancellation  of  a  deed  does  not  of 
itself  directly  establish  the  plaintiff's  title  and  put  him 
in  possession  of  the  land,  but  it  enables  him,  if  neces- 
sary, to  assert  his  title  and  obtain  the  possession.  These 
remedies  may  be  obtained  on  behalf  of  either  a  legal  or 

8  Pom.  Eq.  Jar.,  SS  112,  1316i. 


6  INTEODUCTION.  I  5 

an  equitable  interest,  by  either  a  legal  or  an  equitable 
owner.  The  remedies  constituting  this  group  are  the 
two  following:  Keformation  or  re-execution  of  instru- 
ments, and  rescission,  cancellation,  surrender  up,  or  dis- 
charge of  instruments."* 

§  5.  (4)  Fourth  Group:  Eemedies  by  Which  Estates,  In- 
terests, and  Primary  Eights,  Either  Legal  or  Equitable,  are 
Directly  Declared,  Established,  or  Recovered,  or  the  Enjoyment 
Thereof  Fully  Restored. — "All  the  remedies  belonging  to 

4  4  Pom.  Eq.  Jur.,  §  1375.  To  the  same  effect,  1  Pom.  Eq.  Jur., 
§  171  ("second  class");  4  Pom.  Eq.  Jur.,  §  1316.  The  classification, 
Ibid,  §  112,  contains  these  definitions:  "5.  Remedies  of  Reformation, 
Correction,  or  Re-execution,  by  means  of  which  a  written  instrument, 
contract,  deed,  or  other  muniment  of  title,  which  for  some  reason 
does  not  conform  to  the  actual  rights  and  duties  of  the  parties 
thereto,  is  reformed,  corrected,  or  re-executed.  Sometimes  this 
remedy  is  asked  for  and  obtained  simply  on  its  own  account,  merely 
for  purpose  of  correcting  the  instrument;  but  it  is  often,  and  per- 
haps generally,  obtained  as  a  necessary  step  to  the  granting  of  a 
further  and  more  substantial  relief  needed  by  the  plaintiff,  such  as  a 
restoration  to  full  rights  of  property,  or  the  specific  performance  of 
the  contract  after  it  has  been  corrected.  6.  Eemedies  of  Rescission 
or  Cancellation,  or  those  by  which  an  instrument,  contract,  deed, 
judgment,  and  even  sometimes  a  legal  relation  itself  subsisting  be- 
tween two  parties,  is,  for  some  cause,  set  aside,  avoided,  rescinded, 
or  annulled.  This  remedy,  like  the  preceding,  is  sometimes  con- 
ferred as  the  sole  and  final  relief  needed  by  the  plaintiff,  but  is  often 
the  preliminary  step  to  a  more  effective  remedy  by  which  his  primary 
right  is  declared  or  restored."  In  Professor  Pomeroy's  arrangement 
of  equitable  remedies  in  three  classes  (Pom.  Eq.  Jur.,  §  110),  viz., 
"those  which  are  entirely  different  from  any  kind  of  reliefs  known 
and  granted  by  the  law"  (e.  g.,  injunction,  reformation,  specific  per- 
formance, etc.),  "those  which  are  substantially  the  same  both  in 
equity  and  at  the  law"  (e.  g.,  partition  of  land,  admeasurement  of 
dower,  accounting,  etc.),  and  "those  which  the  legal  procedure  recog- 
nizes, but  does  not  directly  confer,  and  the  beneficial  results  of  which 
it  obtains  in  an  indirect  manner,"  the  remedy  of  rescission  or  can- 
cellation is  given  as  typical  of  this  last  class,  and  the  distinction 
pointed  out  between  this  equitable  relief  and  the  analogous  legal 
method,  an  action  for  the  recovery    of    chattels,    land    or    damages, 


S  5  EQUITABLE    REMEDIES.  6 

this  group  have  one  most  important  distinctive  feature 
in  common,  which  is  apparent  upon  even  a  slight  exam- 
ination. In  all  of  them  the  estate  or  interest  of  the 
complaining  party,  whether  it  be  legal  or  equitable,  is 
directly  established  or  recovered,  or  the  enjoyment 
thereof  is  directly  restored.  These  remedies  are  not, 
therefore,  provisional  or  auxiliary,  but  they  are,  for  the 
purposes  of  the  complaining  party,  as  truly  final  or  ulti- 
mate reliefs  as  is  the  judgment  in  an  action  of  eject- 
ment or  of  replevin.*^  The  estate,  interest,  or  primary 
right  to  be  established  or  recovered,  or  fully  enjoyed  by 
their  means,  may  be  either  legal  or  equitable ;  and  when 
it  is  equitable,  the  establishment  may  consist  in  cloth- 
based  on  the  assumption  of  a  rescission  by  the  act  of  a  party  to  the 
contract  or  conveyance;  for  further  explanation  and  illustration  of 
this  distinction,  and  observations  on  the  frequent  confusion  as  to  the 
requisites  of  legal  and  of  equitable  rescission,  see  post,  chapter  on 
Cancellation. 

5  4  Pom.  Eq.  Jur.,  §  1378.  "This  is  manifestly  so  in  'assignment  of 
dower,'  'settlement  of  disputed  boundaries,'  and  'partition  of  land,' 
since  in  each  of  these  instances  the  plaintiff  establishes  his  indi- 
vidual right  to  and  obtains  sole  possession  of  a  specific  tract  of  land, 
and  in  'partition  of  personal  property,'  he  procures  the  same  with  re- 
spect to  specific  chattels.  The  statement  is  no  less  true  of  the  other 
suits  included  within  this  group.  In  a  suit  to  construe  a  will,  es- 
tates in  specific  property  are  directly  established;  in  suits  to  quiet 
title,  the  very  object  of  the  judgment  is  to  declare  and  establish  the 
plaintiff's  legal  or  equitable  estate  in  some  specific  property,  and 
perhaps  to  convert  his  equitable  estate  into  a  legal  one.  Even  in 
suits  to  remove  a  cloud  from  title,  although  the  relief  is  often  ob- 
tained by  means  of  a  cancellation,  yet,  from  the  nature  of  the  whole 
proceeding,  the  plaintiff's  estate  is  thereby  established,  and  he  is 
left  in  its  full  enjoyment.  In  strict  foreclosures  of  mortgages  or 
pledges,  and  in  redemptions  of  mortgages  or  pledges,  the  plaintiff 
plainly  establishes  his  estate  in,  and  secures  his  possession  of,  the 
specific  land  or  chattels,  free  from  any  claim  of  the  defendant.  How- 
ever much  these  remedies  may  differ  in  appearance,  they  all  have 
this  same  essential  element  which  brings  them  within  the  sama 
group":  Pom.  Eq.  Jur.,  §  1378,  note. 


7l  INTRODUCTION.  S  5 

ing  the  plaintiff  with  the  legal  estate.®  The  remedies 
composing  this  group  are  separated,  by  a  natural  line 
of  division,  into  three  general  classes,  namely :  1.  Suits 
by  which  purely  legal  estates  are  established,  and  the 
enjoyment  thereof  recovered;  2.  Suits  by  which  some 

6  "As  in  some  statutory  suits  to  quiet  title,  and  some  suits  to 
remove  a  cloud  from  title":  Pom.  Eq.  Jur.,  §  1378,  and  note. 

This  group  corresponds,  in  the  main,  with  classes  "1.  Declarative 
Remedies,**  and  "2.  Restorative  Remedies,"  of  Pom.  Eq.  Jur.,  §  112, 
and  with  the  "third  class"  of  Pom.  Eq.  Jur.,  §  171  (which,  however, 
is  made  to  embrace  remedies  of  specific  performance  also) ;  compare  the 
following  description  in  §  171:  "3.  The  third  class  embraces  those 
remedies  by  which  a  primary  right  of  property,  estate,  or  interest  is 
directly  declared,  established,  acquired,  or  enforced;  and  they  often 
consist  in  the  conveyance  by  defendant  of  a  legal  estate,  corres- 
ponding to  the  complainant's  equitable  title.  These  remedies  deal 
directly  with  the  plaintiff's  right  of  property,  and  grant  to  him  the 
final  relief  which  he  needs,  by  establishing  and  enforcing  such  right. 
The  particular  remedies  properly  belonging  to  this  class  may  as- 
sume an  almost  unlimited  variety  of  forms,  since  form  depends 
upon  and  corresponds  to  the  nature  of  the  primary  right  to  be  es- 
tablished, and  of  the  subject-matter  over  which  that  right  extends; 
it  is  chiefly  in  its  relation  with  this  class  that  the  peculiarly  elastic 
quality  of  the  equity  remedial  system  is  found.  The  remedies  belong- 
ing to  this  class  may,  for  purposes  of  clearer  description,  be  agaia 
subdivided  into  three  principal  groups.  Some  are  simply  declarative^ 
that  is,  their  main  and  direct  object  is  to  declare,  confirm,  and  es- 
tablish the  right,  title,  interest,  or  estate  of  the  plaintiff,  whether 
legal  or  equitable;  they  are  usually  granted  in  combination  with 
others,  and  often  need  other  kinds  of  relief  as  a  preliminary  step 
to  making  them  efiieient;  as,  for  example,  a  preliminary  reformation, 
re-execution,  or  cancellation.  Others  are  restorative,  or  those  by 
which  the  plaintiff  is  restored  to  the  full  enjoyment  of  the  right, 
interest,  or  estate  to  which  he  is  entitled,  but  the  use  and  enjoyment 
of  which  has  been  hindered,  interfered  with,  prevented,  or  withheld 
by  the  wrong-doer.  These  also  are  often  granted  in  combination  with 
other  kinds  of  relief,  and  frequently  need  some  other  preliminary 
equitable  remedy,  such  as  cancellation  or  reformation,  to  remove  a 
legal  obstacle  to  the  full  enjoyment  of  the  plaintiff's  right,  and  to 
render  them  efficient  in  restoring  him  to  that  enjoyment.  Others  are 
remedies  of  specific  performance,"  etc.,  enumerating  examples  of 
remedies  belonging  to  this  class. 


II  6,  7  EQUITABLE    REMEDIES.  t 

general  right,  either  legal  or  equitable,  is  established; 
and  3.  Suits  by  which  some  particular  estate  or  inter- 
est, either  legal  or  equitable,  is  established."' 

§  6.  Fourth  Group:  First  Class — "Since  the  particular 
cases  belonging  to  this  class  are  primarily  adapted  to 
purely  legal  interests,  the  common  law  gives  similar  re- 
lief by  means  of  appropriate  legal  actions.  The  juris- 
diction of  equity  was  based  wholly  upon  the  superiority 
of  the  equitable  methods  and  procedure;  and  while  the 
equitable  jurisdiction  in  cases  of  dower  and  partition 
has  become  so  established  that  it  has  almost  displaced 
the  legal  remedies,  that  of  settling  disputed  boundaries 
still  requires  the  presence  of  some  special  equitable  in- 
cident or  circumstance."*  These  remedies  all  belong  to 
the  "concurrent  jurisdiction,"  in  the  strict  definition  of 
that  term. 

§  7.  Fourth  Group:  Second  Class — "In  all  the  remedies 
belonging  to  this  class,  some  general  right,  which  may 
be  either  legal  or  equitable,  is  declared  and  established. 
The  class  includes  suits  to  establish  a  will,  suits  to  con- 
strue a  will,  and  the  bills  of  peace  and  bills  quia  timet 
for  the  purpose  of  quieting  title,  which  belong  to  the 
original  general  jurisdiction  of  equity."     "Some  of  the 

7  Pom.  Eq.  Jur.,  §  1378. 

8  Pom.  Eq.  Jur.,  §  1379.  See,  also,  §  185,  relating  to  the  "ordi- 
nary and  well-settled  instances"  of  the  "concurrent"  jurisdiction: 
"1.  Under  the  first  of  these  classes,  where  the  final  relief  is  substan- 
tially a  recovery  or  obtaining  possession  of  specific  portions  of  land, 
the  concurrent  jurisdiction  is  clearly  established,  and  its  exercise 
is  a  matter  of  ordinary  occurrence,  in  suits  for  the  partition  of  land 
among  joint  owners  or  owners  in  common;  in  suits  for  the  assignment 
or  admeasurement  of  dower;  and  in  suits  for  the  adjustment  of  dis- 
puted boundaries,  where  some  equitable  incident  or  feature  is  in- 
volved, and  the  dispute  is  not  wholly  confined  to  an  assertion  of  mere 
conflicting  legal  titles  or  possessory  rights." 


9  INTRODUCTION.  8§  8,9 

remedies  of  this  class  undoubtedly  depend  upon  what 
the  early  chancellors  called  the  *  jurisdiction  quia  timet/ 
Since  the  conception  of  a  quia  timet  jurisdiction  is  so 
broad,  and  runs  through  so  many  different  branches  of 
the  remedial  jurisprudence,  I  have  not  adopted  it  as  a 
basis  of  classification.  The  object  of  suits  to  establish 
and  to  construe  wills  is  plainly  the  establishment  of  a 
general  right ;  and  the  same  is  no  less  true  of  those  suits 
to  quiet  title,  bills  of  peace,  and  the  like,  which  belong 
to  the  original  jurisdiction  of  equity."* 

§  8.  Fourth  Group:  Third  Class — "In  all  the  instances 
of  this  class,  as  distinguished  from  those  of  the  preced- 
ing one,  the  direct  object  of  the  remedy  is  to  declare  and 
establish  some  particular  estate,  interest,  or  right, 
either  legal  or  equitable,  in  the  property  which  is  the 
subject-matter.  The  class  as  a  whole  embraces  suits  for 
the  strict  foreclosure  of  a  mortgage  or  a  pledge,  suits 
for  the  redemption  of  a  mortgage,  suits  for  the  redemp- 
tion of  a  pledge,  statutory  suits  to  quiet  title,  and  suits 
to  remove  a  cloud  from  title."  "Some  of  these  remedies, 
also,  have  been  said  to  depend  upon  the  quia  timet  jur- 
isdiction."^® 

§  9.  (5)  Fifth  Group:  Remedies  by  Which  Equitable  Ob- 
ligations are  Specifically  and  Directly  Enforced — "The  reme- 
dies embraced  in  this  group  are  all  purely  equitable, 
and  the  rights  of  the  complainant  and  obligations  of  the 
defendant  which  are  enforced  by  their  means  are  also 
equitable.  ^^     They  belong,  therefore,  to  the  exclusive 

»  Pom.  Eq.  Jur.,  §  1393,  and  note.  For  suits  to  construe  a  will, 
see  3  Pom.  Eq.  Jur.,  §§  1155-1157;  for  suits  to  establish  a  will,  see 
3  Pom.  Eq.  Jur.,  §  1158. 

10  Pom.  Eq.  Jur.,  §  1395,  and  note. 

11  "Although  contracts  may  also  give  rise  to  a  legal  right,  yet 
when    equity   compels    their    Bpecific    performance,   it    enforces   the 


§  9  EQUITABLE    REMEDIES.  10 

jurisdiction  of  equity.  Their  distinctive  object  is  to 
specifically  enforce  the  complainant's  equitable  right, 
and  to  compel  the  defendant  to  specifically  perform  the 
actual  equitable  obligation  which  rests  upon  him.  This 
group,  as  a  whole,  contains  the  specific  performance  of 
contracts,  including  the  performance  of  verbal  con- 
tracts for  the  sale  of  land  which  have  been  part  per- 
formed, and  the  delivery  up  of  specific  chattels;  the 
specific  enforcement  of  trusts,  express  and  implied ;  and 
the  specific  enforcement  of  obligations  arising  from  fidu- 
ciary relations  analogous  to  trusts," ^^  the  last-named 
class  including  the  important  sub-classes,  "suits  against 
administrators  or  executors,  and  suits  against  corpora- 
tions and  their  managing  officers.'"^  The  broad  scope 
of  this  class  of  remedies,  perhaps  the  most  characteristic 
of  the  whole  equity  system,  is  thus  described  in  another 
place:  "4.  Remedies  of  Specific  Performance,  or  those 
by  which  the  party  violating  his  primary  duty  is  com- 
pelled to  do  the  very  acts  which  his  duty  and  the  plain- 
tiff's primary  right^^  require  from  him.  The  remedies 
of  this  class  are  very  numerous  in  their  special  forms 
and  in  respect  to  the  juridical  relations  in  which  they 
are  applicable.  'Specific  performance'  is  often  spoken 
of  as  though  it  was  confined  to  the  case  of  executory 
contracts;  but  in  reality  it  is  constantly  employed  in 

equitable  obligation  arising  from  them,  and  not  the  legal  duty.  In 
most  cases,  it  turns  the  vendee's  equitable  estate  into  a  legal  one": 
Pom.  Eq.  Jur.,  §  1400,  note. 

12  Pom.  Eq.  Jur.,  §  1400.  As  to  suits  for  the  delivery  of  specific 
chattels,  written  instruments,  etc.  (an  instance  of  the  "concurrent" 
jurisdiction),  see  1  Pom.  Eq.  Jur.,  §   185. 

13  Pom.  Eq.  Jur.,   §   1411. 

14  For  definitions  of  the  terms  "primary  right"  and  "remedial 
right,"  see  1  Pom.  Eq.  Jur.,  §§  90,  91.  Tho  remedial  right,  or  right 
to  a  remedy,  is  that  which  arises  on  the  breach  of  a  "primary"  or 
(as  it  is  perhaps  more  frequently  and  familiarly  called)  "substan- 
tive" right. 


11  INTKODUCTION.  f  iO 

the  enforcement  of  rig^hts  and  duties  arising  from  re- 
lations between  specific  persons  which  do  not  result 
from  contracts,  as,  for  example,  between  cestiiis  que 
trustcnt  and  their  trustees,  wards  and  their  guardians, 
legatees,  distributees,  or  creditors  and  executors  or  ad- 
ministrators, and  the  like.  In  these  latter  cases,  how- 
ever, as  well  as  in  that  of  the  specific  performance  of  an 
executory  contract  at  the  suit  of  a  vendor,  the  form  and 
nature  of  the  final  relief  is  often  the  same  as  that  of  ac- 
counting, pecuniary  compensation,  or  restoration."^' 

§  10.  (6)  Sixth  Group:  Remedies  in  Which  the  Final  Re- 
lief is  Pecuniary,  but  is  Obtained  by  the  Enforcement  of  a  Lien 
or  Charge  upon  Some  Specific  Property  or  Fund. — "The  title 
of  this  group  plainly  indicates  the  nature  and  object  of 
the  remedies  composing  it.  They  are  all  purely  equi- 
table, and  therefore  belong  to  the  exclusive  jurisdiction; 
because,  although  the  final  relief  is  pecuniary,  and  so 
resembles  the  ordinary  relief  at  law,  it  is  obtained 
through  preliminary  proceedings,  forming  a  part  of 
the  judgment,  which  belong  solely  to  the  procedure  and 
jurisdiction  of  equity."^®  This  group  is  elsewhere  de- 
scribed as  follows:  "Those  remedies  which  establish 
and  enforce  liens  and  charges  on  property,  rather  than 
rights  and  interests  in  property,  either  by  means  of  a 
judicial  sale  of  the  property  itself  which  is  affected  by 
the  lien  and  a  distribution  of  its  proceeds,  or  by  means 
of  a  sequestration  of  the  property,  and  an  appropria- 
tion of  its  rents,  profits,  and  income,  until  they  satisfy 
the  claim  secured  by  the  lien."^^  "Those  cases  in  which 
the  relief  is  not  a  general  pecuniary  judgment,  but  is  a 
decree  of  money  to  be  obtained  and  paid  out  of  some 

15  1  Pom.  Eq.  .Tur.,   §   112. 

16  4  Pom.  Eq.  Jur.,  §  1413. 

17  1  Pom.  Eq.  Jur.,   §   171. 


I  10  EQUITABLE    REMEDIES.  12 

particular  fund  or  funds.  The  equitable  remedies  of 
this  species  are  many  in  number  and  various  in  their 
external  forms  and  incidents.  They  assume  that  the 
creditor  has,  either  by  operation  of  law,  or  from  con- 
tract, or  from  some  acts  or  omissions  of  the  debtor,  a 
lien,  charge,  or  encumbrance  upon  some  fund  or  funds 
belonging  to  the  latter,  either  land,  chattels,  things  in 
action,  or  even  money;  and  the  form  of  the  remedy  re- 
quires that  this  lien  or  charge  should  be  established, 
and  then  enforced,  and  the  amount  due  obtained  by  a 
sale  total  or  partial  of  the  fund,  or  by  a  sequestration 
of  its  rents,  profits,  and  proceeds.  These  preliminary 
steps  may,  on  a  casual  view,  be  misleading  as  to  th© 
nature  of  the  remedy,  and  may  cause  it  to  appear  to  be 
something  more  than  compensatory;  but  a  closer  view 
shows  that  all  these  steps  are  merely  auxiliary,  and  that 
the  real  remedy,  the  final  object  of  the  proceeding,  is 

the  pecuniary   recovery There   is  also  another 

species  of  pecuniary  remedies,  closely  analogous  to  the 
last,  and  differing  from  it  only  in  the  additional  element 
of  a  distribution  of  the  final  pecuniary  awards  among 
two  or  more  parties  having  claims  either  upon  one 
common  fund  or  upon  several  funds.  The  final  relief 
in  all  these  cases  is  simply  pecuniary;  the  amounts  to 
which  the  different  parties  are  entitled  are  ascertained, 
and  are  obtained  by  a  distribution  of  the  fund  or  funds 
upon  which  they  are  chargeable."^®  "The  group  con- 
tains the  following  species  of  remedies:  Suits  for  the 
foreclosure  by  judicial  sale  of  mortgages  of  real  prop- 
erty; suits  for  the  similar  foreclosure  of  mortgages  of 

18  1  Pom.  Eq.  Jur.,  §  112.  "Of  this  species  are  suits  to  wind  up 
partnerships  and  distribute  partnership  assets;  to  settle  and  distrib- 
ute the  personal  estate  of  decedents;  to  marshal  assets;  and  the 
statutory  proceeding  to  wind  up  the  affairs  of  insolvent  corpora- 
tions": Id.  Probably  some  of  these  last-named  remedies  are  pre- 
ferably classed  in  the  next  group. 


13  INTRODUCTION.  i  11 

personal  property;  suits  for  the  similar  foreclosure  of 
pledges;  suits  to  enforce  the  various  equitable  liens; 
suits  to  enforce  the  equitable  contracts  of  married 
women  upon  their  separate  property;^'  suits  to  marshal 
securities;  and  creditors'  suits. "^** 

§  11.  (7)  Seventh  Group:  Remedies  in  Which  the  Final 
Relief  is  Wholly  Pecuniary,  and  is  Obtained  in  the  Form  of  a 
General  Pecuniary  Recovery — "The  remedies  composing 
this  group  belong  to  the  concurrent  jurisdiction  of 
equity,  since  the  final  reliefs  are  the  same  in  form  and 
substance  as  that  granted  under  like  circumstances  by  a 
judgment  at  law, — a  general  pecuniary  recovery, — and 
since  the  primary  rights  and  interests  of  the  parties  are 
generally  recognized  and  protected  by  the  law."^* 
"This  group  contains  the  following  particular  suits: 
By  assignees  of  things  in  action,  equitable  assignees  of 
a  fund,  etc. ;  by  persons  entitled  to  participate  in  a  com- 
mon fund;  for  contribution  in  general;  suits  growing 
out  of  suretyship,  for  exoneration,  contribution,  or  sub- 
rogation ;  suits  growing  out  of  partnership ;  suits  for  an 
accounting  in  general;  recovery  of  damages,  etc."^^ 
Elsewhere,  the  following  are  enumerated  as  the  most  im- 

l»  "Although  the  late  English  cases  hold  that  these  contracts  of 
married  women  do  not  create  any  lien,  yet  the  whole  remedy  in  form 
and  substance  is  exactly  the  same  as  though  there  teas  a  lien,  and  as 
though  its  object  was  to  enforce  that  lien.  Furthermore,  the  Ameri- 
can courts  generally  hold  that  a  lien  is  created":  Pom.  Eq.  Jur.,  S 
1413,  note. 

20  Pom.  Eq.  Jur.,  §  1413.  **  'Creditors'  suits'  belong  to  this  group, 
because  they  are  based  upon  the  conception  that  an  equitable  lien  is 
created  upon  the  judgment  debtor's  property  by  means  of  the  judg- 
ment and  execution  returned  unsatisfied;  and  this  lien  is  in  reality 
enforced,  although  the  enforcement  may,  perhaps,  require  the  an- 
cillary remedies  of  cancellation,  a  receiver,  etc":  Pom.  Eq.  Jur., 
§  1413,  note. 

21  Pom.  Eq.  Jur.,  §  1416. 

22  Pom.  Eq.  Jur.,  §  1316,  note. 


§  11  EQUITABLE    REMEDIES.  14 

portant  and  frequent  instances  of  the  "concurrent"  jur- 
isdiction, when  the  relief  is  pecuniary  r^  Suits  grow- 
ing out  of  the  contract  of  suretyship ;  suits  growing  out 
of  the  contract  of  partnership ;  contribution,  in  general ; 
accounting,  especially  as  between  principal  and  agent, 
and  other  persons  standing  in  fiduciary  relations  to  each 
other;  "the  ascertaining  and  adjustment  of  the  respec- 
tive amounts  of  persons  entitled  to  participate  in  the 
same  fund,  and  of  the  respective  shares  of  persons  sub- 
jected to  some  common  liability;  the  ascertaining  and 
adjustment  of  the  shares  of  persons  liable  to  contribute 
to  a  general  average;  the  ascertaining  and  adjustment 
of  the  shares  of  persons  liable  to  contribute  with  respect 
to  charges  of  any  kind  upon  land  or  other  property; 
the  appropriation  of  payments;  the  apportionment  of 
rents;  and  numerous  other  instances  where  a  number 
of  persons  are  differently  interested  in  the  same  sub- 
ject-matter, or  are  differently  liable  with  respect  to 
some  common  object."  Other  important  instances  are 
suits  for  the  recovery  of  legacies  and  of  gifts  causa 
mortis,  and  other  suits  connected  with  the  administra- 
tion of  the  estates  of  decedents;  pecuniary  relief  occa- 
sioned by  or  growing  out  of  fraud,  mistake,  or  accident 
(rarely  an  independent  ground  of  jurisdiction  in  this 
country);  the  recovery  of  damages  by  way  of  compen- 
sation in  addition  to  or  (occasionally)  in  place  of  other 
equitable  relief;  and  certain  suits — as,  to  compel  a  set- 
off— depending  on  imperfections  of  the  legal  proce- 
dure.^* 

23  Pom.  Eq.  Jur.,  §§  186-189. 

24  See  1  Pom.  Eq.  Jur.,  §  189.  Suits  for  specific  performance 
brought  by  the  vendor,  where  the  recovery  is  pecuniary,  seem,  in 
strict  logic,  to  belong  in  this  group:  See  1  Pom.  Eq.  Jur.,  §  112, 
note  1. 


15  INTEODUCTION.  §  LI 

II. 

§  12.  Equitable  Remedies  Acted  in  Personam. — "In  the 
infancy  of  the  court  of  chancery  while  the  chancellors 
were  developing  their  system  in  the  face  of  a  strong  op- 
position, in  order  to  avoid  a  direct  collision  with  the 
law  and  with  the  judgments  of  law  courts,  they  adopted 
the  principle  that  their  own  remedies  and  decrees  should 
operate  in  personam  upon  defendants,  and  not  in  rem. 
The  meaning  of  this  simply  is,  that  a  decree  of  a  court 
of  equity,  while  declaring  the  equitable  estate,  interest, 
or  right  of  the  plaintiff  to  exist,  did  not  operate  by  its 
own  intrinsic  force  to  vest  the  plaintiff  with  the  legal 
estate,  interest  or  right  to  which  he  was  pronounced 
entitled ;  it  was  not  itself  a  legal  title,  nor  could  it  either 
directly  or  indirectly  transfer  the  title  from  the  defend- 
ant to  the  plaintiff.  A  decree  of  chancery  spoke  in 
terms  of  personal  command  to  the  defendant,  but  its 
directions  could  only  be  carried  into  effect  by  his  per- 
sonal act  It  declared,  for  example,  that  the  plaintiff' 
was  equitable  owner  of  certain  land,  the  legal  title  of 
which  was  held  by  the  defendant,  and  ordered  the  de- 
fendant to  execute  a  conveyance  of  the  estate;  his  own 
voluntary  act  was  necessary  to  carry  the  decree  into 
execution;  if  he  refused  to  convey,  the  court  could  en- 
deavor to  compel  his  obedience  by  fine  and  imprison- 
ment. The  decree  never  stood  as  a  title  in  the  place  of 
an  actual  conveyance  by  the  defendant;  nor  was  it  ever 
carried  into  effect  by  any  officer  acting  in  the  defend- 
ant's name."^^     Thus,  on  a  bill  for  the  removal  of  a 

25  1  Pom.  Eq.  Jur.,  §  428.  See,  also,  Id.,  §§  134,  135,  170.  1317; 
Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444,  2  Lead.  Cas.  Eq.,  4th  Am.  e<[., 
1806,  and  notes;  Proctor  v.  Ferebee,  1  Ired.  Eq.  (36  N.  C.)  143,  36 
Am.  Dec.  34,  and  note.  Pom.  Eq.  Jur.,  §  1317,  is  cited,  as  to  the 
effect  of  decrees,  in  Powell  v.  Campbell,  20  Nev.  232,  19  Am.  St. 
Eep.  350,  20  Pac.  156,  2  L.  K.  A.  615. 


I  13  EQUITABLE    REMEDIES.  16 

cloud  upon  title,  the  decree  operated  in  personam  only, 
by  restraining  the  defendant  from  asserting  his  claim, 
and  directing  him  to  deliver  up  his  deed  to  be  canceled, 
or  to  execute  a  release  to  the  plaintiff.^^  When  the 
chancellor  directed  the  sale  of  property,  "it  was  by  his 
control  over  the  person  of  the  owner  that  he  made  the 
sale  effective,  i.  e.,  when  the  sale  had  been  made  he  com- 
pelled the  owner  to  execute  a  deed,  pursuant  to  the  sale ; 
and  hence  when  the  owner  was  out  of  the  jurisdiction 
the  chancellor  was  powerless. "^'^  And  a  decree  in  parti- 
tion "did  not  transfer  or  convey  title  even  after  the 
allotment  of  the  respective  shares  of  each  of  the  parties 
to  the  proceeding,  but  the  legal  title  remained  as  it  was 

before This  dififlculty  was  remedied  by  a  decree 

that  the  parties  should  make  the  necessary  conveyances 
to  each  other,  which,  if  they  refused,  they  could  be  com- 
pelled to  do  by  attachment,  imprisonment  and  other 
powers  of  the  court  over  them  in  person."^^ 

§  13.  Same — Modem  Legfislation — Decree  may  Transfer 
Title. — ''This  original  doctrine  has  been  abrogated,  for 
all  classes  of  remedies  to  which  it  could  apply,  by  statu- 
tory legislation  in  a  large  number  of  the  states.  This 
legislation  may  be  reduced  to  two  general  types: 
(1)  That  by  which  the  decree  itself  without  any  act  of 
the  defendant  or  of  an  officer  on  his  behalf  becomes  a 

26  Hart  V.  Sansom,  110  U.  S.  151,  3  Sup.  Ct.  586,  28  L.  ed.  101  (cit- 
ing Langdell  Eq.  PI.  (2d  ed.),  §§  43,  184;  Massie  v.  Watts,  6  Cranch, 
148,  3  L.  ed.  181;  Orton  v.  Smith,  18  How.  263,  15  L.  ed.  263;  Van- 
dever  v.  Freeman,  20  Tex.  334,  70  Am.  Dec.  391). 

27  McCann  v.  Eandall,  147  Mass.  81,  99,  9  Am.  St.  Eep.  666,  17 
N.  E.  75,  88  (citing  Langdell's  Eq.  PI.  (2d  ed.),  §  43,  note  4; 
Pom.  Eq.  Jur.,  §  1317;  Hart  v.  Sansom,  supra). 

28  Gay  V.  Parpart,  106  U.  S.  679,  690,  1  Sup.  Ct.  456,  465,  27  L. 
ed.  256,  per  Miller,  J.  (quoting  from  Waley  v.  Dawson,  2  Schoales  & 
L.  366,  per  Lord  Redesdale;  Mitford's  Eq.  PI.  (Jeremy's  ed.),  120; 
Adams'  Eq.   231). 


17  INTRODUCTION.  I  13 

title,  and  vests  a  legal  estate  in  the  subject-matter  in 
the  plaintiff;  (2)  That  by  which  a  commissioner,  mas- 
ter, or  other  officer  of  the  court  executes  the  decree, 
and  through  his  conveyance  or  other  official  act  trans- 
fers the  legal  estate  from  the  defendant  to  the  plaintiff, 
or  other^dse  vests  the  plaintiff  with  title.  Both  these 
types  are  often  found  in  the  statutes  of  the  same  state. 
In  all  cases  where  an  instrument  is  directed  to  be  exe- 
cuted by  an  officer,  the  statutes  provide  that  it  shall 
have  exactly  the  same  effect  as  if  executed  by  the  party 
himself.  "2*    "In  some  statutes  of  the  first  type  the  lan- 

29  Pom.  Eq.  Jur.,  §  1317.  As  illustrations  of  the  first  type  of 
statute,  where  the  decree  itself  operates  as  a  title,  see  King  v.  Bill, 
28  Conn.  593;  Hoffman  v.  Stigers,  28  Iowa,  302  (partition);  Young 
V.  Frost,  1  Md.  377,  403  (partition);  Gitt  v.  Watson,  18  Mo.  274; 
Sensenderfer  v.  Kemp,  83  Mo.  581  (decree  divesting  title  of  con- 
structive trustee,  a  purchaser  with  notice  of  equitable  title) ;  Bohart 
V.  Chamberlain,  99  Mo.  622,  13  S.  W,  85  (re-execution  of  a  lost  in- 
Btrument;  instead  of  ordering  its  re-execution  court  may  make  a 
declaratory  decree,  establishing  the  existence  of  the  deed  in  question; 
citing  Pom.  Eq.  Jur.,  §§  171,  429,  827;  Garrett  v.  Lynch,  45  Ala.  204); 
Macklin  v.  Allenberg,  100  Mo.  337,  13  S.  W.  350  (setting  aside  deed 
as  fraud  on  creditors);  Price  v.  Sisson,  13  N.  J.  Eq.  168  (reformation 
of  deed);  Skinner  v.  Terry,  134  N.  C.  305,  46  S.  E.  517;  Taylor  v. 
Boyd,  3  Ohio,  337,  17  Am.  Dec.  603;  Jelke  v.  Goldsmith,  52  Ohio  St. 
499,  49  Am.  St.  Rep.  730,  40  N.  E.  167  (statute  of  Ohio  does  not 
apply  to  decrees  concerning  personal  property);  Griffiths  v.  Phillips, 
3  Grant    Cas.   (Pa.)    381   (partition). 

It  has  been  held  that  "the  rights  of  the  parties  in  case  of  a  var- 
iance between  the  terms  of  the  decree  and  of  the  conveyance,  must 
depend  upon  the  former  rather  than  upon  the  latter":  Price  v. 
Sisson,  13  N.  J.  Eq.  168,  172,  supra;  and  that  "the  terms  of  the 
decree  must  be  construed  precisely  as  the  conveyance  itself  would  be 
if  executed  within  the  time  appointed  for  its  execution":  Id.;  Hoff- 
man v.  Stigers,  28  Iowa,  302,  supra. 

"Whenever  the  decree  itself  thus  operates  to  transfer  title,  a  re- 
versal of  the  decree  upon  appeal  necessarily  destroys  this  effect 
as  hetween  the  parties  themselves,  divests  the  title  from  the  party  to 
whom  it  had  been  transferred,  and  revests  it  in  the  party  from  whom 
it  had  passed.  But  if  the  decree  had  been  executed  bj  means  of  a 
Equitable  Remedies,  Vol.  I — 2 


§  13  EQUITABLE    REMEDIES.  18 

guage  is  positive  and  peremptory,  that  the  decree  shall 
operate  to  transfer  the  title,  etc. ;  in  others  it  is  per- 
missive,— the  court  may  provide  in  the  decree  that  it 
shall  operate  to  transfer  the  title  in  case  the  defendant 
neglects  or  refuses  to  obey  its  mandates.  Similar  varia- 
tions are  found  in  the  statutes  of  the  second  type.  "*'* 

conveyance,  and  the  title  had  thus  passed  to  a  bona  fide  purchaser, 
before  the  appeal,  a  reversal  may  not  divest  him  of  the  title  or 
compel  him  to  reconvey:  See  Stats,  of  Delaware;  Taylor  v.  Boyd,  3 
Ohio,  337,  17  Am.  Dec.  603";  Pom.  Eq.  Jur.,  §  13lV,  note;  see,  also, 
McCormick  v.  McClure,  6  Blackf.  (Ind.)  466,  39  Am.  Dec.  441; 
Macklin  v.  Allenberg,  100  Mo.  337,  13  S.  W.  350  (bona  fide  purchaser 
not  affected  by  reversal  on  a  writ  of  error,  that  being  in  effect  a 
new  suit).  The  question  in  such  cases  is  largely  one  of  the  contin- 
uance of  the  Us  pendens  of  the  original  suit:  See  2  Pom.  Eq.  Jur. 
(3d  ed.),  §  634,    and  notes. 

As  to  the  time  when  title  passes  under  these  statutes,  there  is 
For'e  dispute.  Compare  Shotwell  v.  Lawson,  30  Miss.  27,  64  Am.  Dec. 
145  (deed  executed  by  commissioner  under  decree  vacating  title  to 
real  estate  relates  back  to  commencement  of  suit,  as  against  defendant 
in  such  suit  and  those  subsequently  claiming  title  under  him),  with 
King  V.  Bill,  28  Conn.  593  (third  person  to  whom  defendant  con- 
veyed after  filing  of  the  bill  but  before  decree  not  divested  of  his 
title  by  the  decree). 

30  Pom.  Eq.  Jur.,  §  1317,  note  2.  The  following  are  the  most  im- 
portant  of   these   statutes: 

Alabama. — Civ.  Code,  1896,  §  849:  "When  a  decree  is  made  for  a 
conveyance,  release,  or  acqijittance,  and  the  party  against  whom  the 
decree  is  made  does  not  execute  the  same  by  the  time  specified  in 
the  decree,  such  decree  operates  in  all  respects  as  fully  as  if  the 
conveyance,  release  or  acquittance  was  made;  or  the  court  may  de- 
cree, in  default  of  the  execution  of  such  conveyance,  release  or  ac- 
quittance, the  same  to  be  executed  by  the  register  or  a  commis- 
sioner in  the  name  of  the  party;  and  the  conveyance,  release  or  ac- 
quittance, when  so  executed,  is  as  valid  in  all  respects  as  if  executed 
by  the  party;  or  the  court  may  directly  divest  title  out  of  one  party 
and  vest  it  in  another." 

Arizona.— Eev.  Stats.  1901,  §  1430:  "When  the  judgment  is  for 
the  conveyance  of  real  estate,  or  for  the  delivery  of  personal  prop- 
erty, the  decree  may  pass  the  title  to  such  property  without  any  aet 
to  be  done  on  the  part  of  the  party  agaiust  whom  the  judgment  is 
rendered." 


19  INTRODUCTION,  §  13 

Arkansas.— Sandel  &  Hill's  Dig.  of  Stat.,  §  4241:  "In  all  cases 
where  the  court  may  decree  the  conveyance  of  real  estate,  or  the 
delivery  of  personal  property,  they  may,  by  decree,  pass  the  title 
of  such  property  without  any  act  to  be  done  on  the  part  of  the  de- 
fendant, where  it  shall  be  proper,  and  may  issue  a  writ  of  possession 
if  necessary,  to  put  the  party  in  possession  of  such  real  or  personal 
property,  or  may  proceed  by  attachment  or  sequestration." 

§  4242:  "When  an  unconditional  decree  shall  be  made  for  a  con- 
veyance, release  or  acquittance,  and  the  party  required  to  execute 
the  same  shall  not  comply  therewith,  the  decree  shall  be  considered 
and  taken  to  have  the  same  operation  and  effect,  and  be  as  available 
as  if  the  conveyance,  release  or  acquittance  had  been  executed  con- 
formably to  the  decree." 

Connecticut. — Gen.  Stats.  1902,  §  555:  "Courts  of  equitable  juris- 
diction may  pass  the  title  to  real  estate  by  decree,  without  any  act 
on  the  part  of  the  defendant,  when,  in  their  judgment,  it  shall  be 
the  proper  mode  to  carry  the  decree  into  effect;  and  such  decree, 
having  been  recorded  in  the  records  of  lands  in  the  town  where  such, 
real  estate  is  situated,  shall,  while  in  force,  be  as  effectual  to  transfer 
the  same  as  the  deed  of  the  defendant." 

Delaware, — Eev.  Stats.,  c.  95,  §  12:  "All  real  estate,  within  this 
state,  shall  be  liable  to  be  sold,  by  order  of  the  chancellor,  on  such 
terms  and  in  such  manner  as  he  shall  direct,  by  the  sheriff,  or  by  any 
party  to  a  suit  in  chancery,  when  such  sale  shall  be  necessary  to 
give  effect  to,  and  carry  into  execution  a  decree  of  the  court  of 
chancery.  And  when  any  such  real  estate  shall  be  so  sold,  and  there 
shall  be  a  surplus  of  money,  arising  from  the  sale,  above  what  is 
sufficient  for  the  purposes  of  the  sale,  such  surplus  shall  be  paid  over, 
or  applied  as  the  chancellor  shall  order.  Such  sales  shall  be  as 
available  in  law  to  the  vendees  as  sales  of  land  seized  and  sold  upon 
judgment  and  execution  are  by  virtue  of  any  law  of  this  state; 
provided,  that  if  any  such  decree,  under  which  any  real  estate  shall 
be  so  sold,  shall  be  reversed  by  the  court  of  errors  and  appeals, 
none  of  the  real  estate,  so  sold,  shall  be  restored,  nor  shall  the  sale 
thereof  be  avoided,  but  restitution  shall  be  made,  in  such  cases,  of 
the  money  for  which  such  real  estate  was  sold;  and  provided  also, 
that  no  sale  shall  be  valid  until  return  thereof  shall  be  made  to  the 
court  of  chancery,  and  it  shall  be  approved  and  confirmed  by  the 
chancellor." 

Florida. — Rev.  Stats.  1892,  §  1451:  "Where  a  decree  in  chancery 
shall  be  made  for  a  conveyance,  release  or  acquittance  of  land,  or  any 
interest  therein,  and  the  party  against  whom  the  said  decree  shall 
pass  shall  not  comply  therewith  by  the  time  appointed,  then  suck 
decree  shall  be  considered  and  taken  in  all  courts  of  law  and  equity 


5  13  EQUITABLE    REMEDIES.  20 

to  have  the  same  operation  and  effect  and  to  be  as  available  as  if 
the  conveyance  and  release  or  acquittance  had  been  executed  con- 
formably to  such  decree,  and  this,  notwithstanding  any  disability 
of  such  parties  by  infancy,  lunacy,  coverture  or  otherwise." 

Georgia. — Code  1895,  §  4852:  "A  decree  for  specific  performance 
shall  operate  as  a  deed  to  convey  land  or  other  property  without  any 
conveyance  being  executed  by  the  vendor.  Such  decree  certified  by 
the  clerk  shall  be  recorded  in  the  registry  of  deeds  in  the  county 
where  the  land  lies,  and  shall  stand  in  the  place  of  a  deed," 

lUinols.— Hurd 's  Rev.  Stats.  1899,  p.  225,  §  46:  "Whenever  a  decree 
shall  be  made  in  a  suit  in  equity,  "directing  the  execution  of  any 
deed  or  other  writing,  it  shall  be  lawful  for  the  court  to  appoint  a 
commissioner,  or  direct  the  master  in  chancery  to  execute  the  same, 
in  case  the  parties  under  no  disability  fail  to  execute  the  same,  in 
a  time  to  be  named  in  the  decree,  or  on  behalf  of  minors  or  persons 
having  conservators."  Such  conveyance  shall  have  the  same  ef- 
fect "as  if  executed  by  the  right  party  in  proper  person,  and  he 
or  she  were  under  no  disability." 

Indiana. — Burns'  Ann.  Stats.  1901,  §  1027:  "Real  property  may  be 
conveyed  by  a  commissioner  appointed  by  the  court: 

"First,  where,  by  the  judgment  in  an  action,  a  party  is  ordered 
to  convey  real  property  to  another  or  any  interest  therein." 

Iowa. — Code  1897,  S  3805:  Same  as  Indiana,  but  omitting  "or  any 
interest  therein." 

Kansas.— Rev.  Stats.  1901,  §  4849;  Code,  §  400:  Similar  to  Alabama, 
except  that  conveyance  may  be  executed  by  the  sheriff  instead  of 
by  a  register  or  commissioner,  and  that  the  provision  that  the  court 
may  directly  divest  title  is  omitted. 

Kentucky.— Codes  1900,  §  394:  Same  as  Iowa. 

Maine. — Rev.  Stats.  1903,  p.  873,  c.  114,  §  10:  In  certain  actions 
for  specific  performance  of  contracts  to  convey  land,  "if  the  defend- 
ant neglects  or  refuses  to  convey  according  to  the  decree,  the  court 
may  render  judgment  for  the  plaintiff  for  possession  of  the  land, 
to  hold  according  to  the  terms  of  the  intended  conveyance,  and 
may  issue  a  writ  of  seizin  as  in  a  real  action,  under  which  the 
plaintiff,  having  obtained  possession,  shall  hold  the  premises  as  ef- 
fectually as  if  conveyed  in  pursuance  of  the  decree;  or  the  court 
inay  enforce  its  decree  by  any  other  process  according  to  chancery 
proceedings.  *' 

Maryland. — Pub.  Gen.  Laws,  §  91:  "In  all  cases  where  the  court 
shall  decree  that  a  deed  of  any  kind  shall  be  executed,  a  trustee  to 
execute  such  deed  may  be  appointed,  and  until  such  trustee  shall 
execute  a  deed,  the  decree  itself,  if  passed  in  the  county  where  the 


21  INTRODUCTION.  I  13 

land  lies,  shall  have  the  same  effect  that  the  deed  would  if  executed; 
liut  if  passed  in  another  county,  the  decree  shall  have  that  effect 
if  recorded  in  the  county  where  the  land  lies  within  six  months  from 
the  date  thereof." 

Michigan. — Howell's  Ann.  Stats.,  §  6650:  "And  if  such  decree  shall 
direct  the  execution  of  a  conveyance  or  other  instrument  affecting 
the  title  to  real  estate,  the  record  of  such  certified  copy  shall  have 
the  same  effect  as  the  record  of  such  conveyance  or  other  instrument 
affecting  the  title  to  real  estate  would  have  if  duly  executed  pursu- 
ant to  said  decree." 

Minnesota.— Gen.  Stats.  1894,  c.  75,  §  14:  "The  district  court  has 
power  to  pass  the  title  to  real  estate  by  a  judgment,  without  any 
ether  act  to  be  done  on  the  part  of  the  defendant,  when  such  ap- 
pears to  be  the  proper  mode  to  carry  its  judgments  into  effect;  and 
such  judgment,  being  recorded  in  the  registry  of  deeds  of  the  county 
where  such  real  estate  is  situated,  shall,  while  in  force,  be  as  ef- 
fectual to  transfer  the  same  as  the  deed  of  the  defendant." 

Mississippi. — Annotated  Code  1892,  §  594:  "The  decree  of  a  court 
of  chancery  shall  have  the  force,  operation  and  effect  of  a  judg- 
ment at  law  in  the  circuit  court." 

§  595:  "When  a  decree  shall  be  made  for  a  conveyance,  release, 
or  acquittance,  or  other  writing,  and  the  party  against  whom  the 
decree  is  made  shall  not  comply  therewith,  then  such  decree  shall 
be  considered  and  taken  in  all  courts  of  law  and  equity  to  have  the 
same  operation  and  effect,  and  shall  be  as  available,  as  if  the  con- 
veyance, release,  or  acquittance,  or  other  writing  had  been  executed 
in  conformity  to  the  decree;  or  the  court  may  appoint  a  commis- 
sioner to  execute  such  writing,  which  shall  have  the  same  effect  aa 
if  executed  by  the  party." 

Missouri. — Rev.  Stats.  1889,  §  6041:  "In  all  cases  where  any  court 
of  record  shall  judge  or  decree  a  conveyance  of  real  estate,  or  that 
any  real  estate  shall  pass,  the  party  in  whose  favor  the  judgment 
or  decree  is  rendered  shall  cause  a  copy  thereof  to  be  recorded  in 
the  office  of  the  recorder  of  the  county  wherein  the  lands  passed  or 
to  be  conveyed  lie,  within  eight  months  after  such  judgment  or  de- 
cree is  entered." 

Nebraska.— Cobbey 's  Statutes  1903,  §  1416:  "That  when  any 
judgment  or  decree  shall  be  rendered  for  a  conveyance,  release,  or 
acquittance,  in  any  court  of  this  state,  and  the  party  or  parties 
against  whom  the  judgment  or  decree  shaU  be  rendered  do  not  com- 
ply therewith  within  the  time  mentioned  in  said  judgment  or  de- 
tree,  such  judgment  or  decree  shall  have  the  same  operation  and 
effect,  and  be  as  available  as  if  the  conveyance,  release,  or  acquit- 
tance had  been  executed  conformable  to  such  judgment  or  decree." 


§  13  EQUITABLE    REMEDIES.  2* 

§  1441;  "Real  property  may  be  conveyed  by  master  commissioners 
as  hereinafter  provided:  First.  When  by  an  order  or  judgment  in  an 
action  or  proceeding,  a  party  is  ordered  to  convey  such  property  to 
another,  and  he  shall  neglect  or  refuse  to  comply  with  such  order  or 
judgment.  Second.  "When  specific  real  property  is  required  to  be 
sold  under  an  order  or  judgment  of  the  court." 

New  Jersey. — Gen.  Stats.  1895,  p.  383:  "That  where  a  decree  of 
the  court  of  chancery  shall  be  made  for  a  conveyance,  release,  or 
acquittance  of  lands  or  any  interest  therein,  and  the  party  against 
whom  the  said  decree  shall  pass  shall  not  comply  therewith  by  the 
time  appointed,  then  such  decree  shall  be  considered  and  taken,  in 
al]  courts  of  law  and  equity,  to  have  the  same  operation  and  effect, 
and  be  as  available  as  if  the  conveyance,  release,  or  acquittance  had 
been  executed  conformably  to  such  decree^  and  this,  notwithstanding 
any  disability  of  such  party  by  infancy,  lunacy,  coverture,  or  other- 
wise. ' ' 

New  York.— Code  Civ.  Proc.  1896,  §  718:  "Where  a  judgment  di- 
rects a  party  to  ...  .  convey  real  property;  if  the  direction  is  dis- 
obeyed, the  courts,  besides  punishing  the  disobedience  as  a  contempt, 
may,  by  order,  require  the  sheriff  ....  to  convey  the  real  property, 
in  conformity  with  the  direction  of  the  court." 

North  Carolina. — Clark's  Code  of  Civ.  Proc,  §  426:  "In  any  ac- 
tion, wherein  the  court  shall  declare  that  a  party  is  entitled  to  the 
possession  of  property,  real  or  personal,  the  legal  title  whereof  may 
be  in  another  or  others,  parties  to  the  suit,  and  the  court  shall  order 
a  conveyance  of  euch  legal  title  to  him  so  declared  to  be  entitled,  or 
where,  for  any  cause,  the  court  shall  order  that  one  of  the  parties 
holding  property  in  trust  shall  convey  the  legal  title  therein  to  be 
held  in  trust  to  another  person,  although  not  a  party,  the  court, 
after  declaring  the  right  and  ordering  the  conveyance,  shall  have 
power,  also,  to  be  used  in  its  discretion,  to  declare  in  the  order  then 
made,  or  in  any  made  in  the  progress  of  the  cause,  that  the  effect 
thereof  shall  be  to  transfer  to  the  party  to  whom  the  conveyance  is 
directed  to  be  made  the  legal  title  of  the  said  property,  to  be  held 
in  the  same  plight,  condition  and  estate  as  though  the  conveyance 
ordered  was  in  fact   executed." 

§  427:  "Every  judgment,  in  which  the  transfer  of  title  shall  be 
eo  declared,  shall  be  regarded  as  a  deed  of  conveyance,  executed  in 
due  form  and  by  capable  persons,  notwithstanding  the  want  of  ca- 
pacity in  any  person   ordered  to  convey." 

North  Dakota. — Pievised  Code  1899,  §  5486:  "In  aU  actions  arising 
under  chapter  30  of  this  code  and  in  actions  commenced  for  th© 
satisfaction  of  record  of  mortgages  or  other  liens  upon  real  property 
or  for  the  specific  performance  of  contracts  relating  to  real  property. 


23  INTRODUCTION.  9  13 

the  court  may  "by  its  judgment  without  any  act  on  the  part  of  tho 
defendant  transfer  the  title  to  real  property  and  remove  or  discharge 
a  cloud  or  encumbrance  thereon,  and  a  certified  copy  of  such  judg- 
ment may  be  recorded  in  the  office  of  the  register  of  deeds  of  the 
county  in  which  the  property  affected  is  situated." 

Ohio. — Bates'  Ann.  Code,  4th  ed.,  §  5318:  "When  the  party  against 
whom  a  judgment  for  a  conveyance,  release,  or  acquittance  is  ren- 
dered, does  not  comply  therewith  by  the  time  appointed,  such  judg- 
ment shall  have  the  same  operation  and  effect,  and  be  as  available, 
as  if  the  conveyance,  release,  or  acquittance  had  been  executed  cou- 
iormabiy  to  such  juelyment." 

Oklahoma.— Eev.  Stats.  1903,  §  4589:  Similar  to  Kansas. 

Oregon. — Bellinger  &  Cotton's  Codes  and  Stats.,  §  415:  "A  decree 
requiring  a  party  to  make  a  conveyance,  transfer,  release,  acquit- 
tance, or  other  like  act  within  a  period  therein  specified  shall,  if  such 
party  do  not  comply  therewith,  be  deemed  and  taken  to  be  equiva- 
lent thereto." 

Tennessee. — Code,  1896:  "The  decree  may  divest  the  title  to  prop- 
erty, real  or  personal,  out  of  any  of  the  parties,  and  vest  it  in  others, 
and  such  decree  shall  have  all  the  force  and  effect  of  a  conveyance 
by  such  parties,  executed  in  due  form  of  law." 

Texas. — Sayles'  Stats.,  art.  1338:  "Where  the  judgment  is  for  the 
conveyance  of  real  estate,  or  for  the  delivery  of  personal  property, 
the  decree  may  pass  title  to  such  property  without  any  act  to  be 
done  on  the  part  of  the  party  against  whom  the  judgment  is  ren- 
dered." 

Utah.— Eev.  Stats.  1898,  §  3279:  "When  the  judgment  requires  the 
person  against  whom  it  is  rendered  to  execute  and  deliver  to  any 
other  person  a  conveyance  of  any  specific  real  property,  and  the 
person  against  whom  it  is  rendered  shall  refuse  or  neglect  to  execute 
and  deliver  said  conveyance  for  five  days  after  the  service  upon  him 
of  a  certified  copy  of  such  judgment,  or  if  he  is  absent  or  concealed, 
60  that  service  of  such  certified  copy  cannot  be  had,  upon  proof 
satisfactory  to  the  court  that  such  service  has  been  made,  or  that  it 
cannot  be  made  by  reason  of  such  absence  or  concealment,  the  person 
entitled  to  the  conveyance  may  obtain  from  the  court  an  order  that 
the  certified  copy  of  the  judgment,  together  with  the  order,  be  re- 
corded by  the  recorder  of  deeds  of  the  county  where  the  real  prop- 
erty is  situated;  and  when  recorded,  it  shall  give  to  the  person  en- 
titled to  such  conveyance  a  right  to  the  possession  of  the  real  prop- 
erty described  in  the  judgment,  and  to  hold  the  same  according  to 
the  terms  of  the  conveyance  ordered,  in  like  manner  as  if  it  had  been 
conveyed  in  pursuance  of  the  judgment.     The  recording  of  any  Judg- 


{  14  EQUITABLE    REMEDIES.  24 

§  14.  Same — Limitations  on  Effect  of  this  Legislation. — • 
"These  statutes  do  not  generally  interfere  with  the 
original  power  of  courts  of  equity  to  enforce  obedience 
to  their  decrees  by  the  parties  themselves,  and  to  punish 
such  parties  for  their  disobedience  by  attachment,  fine, 
imprisonment,  or    sequestration.^^     The    operation    of 

ment  as  above  provided  shall  not  prevent  the  court  rendering  the 
judgment  from  enforcing  the  same  by  any  proper  process,  according 
to  the  course  of  proceedings  therein." 

Vermont. — Stats.  1894,  §  980:  "When  a  decree  is  made  by  a  court 
of  chancery  for  a  conveyance,  release,  or  acquittance,  and  the  party 
against  whom  the  decree  is  made  does  not  comply  therewith  by  the 
time  appointed,  the  decree  shall  be  held  to  have  the  same  effect  as 
if  the  conveyance,  release,  or  acquittance  had  been  executed  agree- 
ably to  such  decree.  But  such  decree  shall  not  be  deemed  a  convey- 
ance of  real  estate,  unless  a  copy  of  the  same,  certified  by  the  clerk 
of  the  court,  is  recorded  in  the  office  in  which  a  deed  of  such  real 
estate  is  required  by  law  to  be  recorded." 

Virginia. — Pollard's  Ann.  Code  1904,  §  3418:  "A  court  of  equity, 
in  a  suit  wherein  it  is  proper  to  decree  or  order  the  execution  of  any 
deed  or  writing,  may  appoint  a  commissioner  to  execute  the  same; 
and  the  execution  thereof  shall  be  as  valid  to  pass,  release,  or  extin- 
guish the  right,  title,  and  interest  of  the  party  on  whose  behalf  it 
is  executed,  as  if  such  party  had  been  at  the  time  capable  in  law  of 
executing  the  same,  and  had  executed  it." 

West  Virginia. — Code  1899,  c.  132:  "A  court  of  law  or  equity,  in  a 
suit  in  which  it  is  proper  to  decree  or  order  the  execution  of  any 
deed  or  writing,  may  appoint  a  commissioner  to  execute  the  same; 
and  the  execution  thereof  shall  be  as  valid  to  pass,  release  or  ex- 
tinguish the  right,  title,  and  interest  of  the  party  on  whose  behalf 
it  is  executed,  as  if  such  party  had  been  at  the  time  capable  in  law 
of  executing  the  same  and  had  executed  it." 

Wisconsin. — Stats.  1898,  §  2236:  "All  judgments,  decrees  and 
orders  rendered  or  made  by  any  court  in  eases  where  the  title  to 
land  shall  have  been  in  controversy  may  be  recorded  in  the  office 
of  the  register  of  deeds  of  every  county  where  any  part  of  the  landa 
are  situate,  in  the  same  manner  and  with  like  effect  as  conveyances. 
Such  recording  may  be  done  from  a  duly  certified  copy  thereof." 

Wyoming.— Rev.  Stats,  1899,  §  3759:  Same  as  Ohio. 

81  Pom,  Eq,  Jur.,  §  1317;  so  held  in  Randall  v.  Pryor,  4  Ohio,  424; 
Penn  v.  Hayward,  14  Ohio  St.  302.     It  seems,  however,  that  under 


25  INTRODUCTION.  S  14 

these  statutes  is  confined  to  the  territorial  limits  and 
jurisdiction  of  the  states  in  which  they  are  respectively 
enacted."^^  It  is  impossible  for  a  decree  of  a  court  of 
one  state  to  directly  affect  property  in  another.  No 
state  has  power  to  interfere  with  the  sovereign  rights 
of  a  sister  state.  This  legislation,  it  has  been  said,  ''does 
not  extend  to  decrees  of  the  United  States  courts.  The 
effect  of  equitable  remedies  granted  and  decrees  ren- 
dered by  the  United  States  courts,  in  the  absence  of 
legislation  by  Congress,  is  governed  by  the  original  doc- 
trine of  equity;  their  decrees  do  not  transfer  title;  they 
must  be  executed  by  the  parties,  and  obedience  is  com- 
pelled by  proceedings  in  the  nature  of  punishment  for 
contempt,  attachment,  or  sequestration.^^     There  are, 

the  statutes  of  Georgia  relating  to  execution  for  enforcement  of  pe- 
cuniary judgments,  a  decree  for  the  payment  of  money  cannot  be 
enforced  by  attachment  of  the  person:  Clement  v.  TuUman,  79  Ga. 
451,  11  Am.  St.  Eep.  441,  5  S.  E.  194. 

32  Pom.  Eq.  Jur.,  §  1317.  See,  also,  Watkins  v.  Holman,  16  Pet. 
25,  10  L.  ed.  873  ("neither  the  decree  itself,  nor  any  conveyance 
under  it,  can  operate  beyond  the  jurisdiction  of  the  court");  Cor- 
bett  V.  Nutt,  10  Wall.  464,  19  L,  ed.  976;  Carpenter  v.  Strange,  141 
U.  S.  87,  106,  11  Sup.  Ct.  960,  35  L.  ed.  640;  Dull  v.  Blackman,  169 
U.  S.  243,  18  Sup.  Ct.  333,  42  L.  ed.  733;  Guarantee  Trust  etc.  Co.  v. 
Delta  etc.  Co.,  104  Fed.  5,  and  cases  cited;  Lindley  v.  O'Eeilly,  50 
N.  J.  L.  636,  15  Atl.  379;  Bullock  v.  Bullock,  52  N.  J.  Eq.  561,  46  Am. 
St.  Rep.  528,  27  L.  R.  A.  213,  30  Atl.  676. 

33  Pom.  Eq.  Jur.,  §  1317.  See,  also,  Shepherd  v.  Commissioners  of 
Ross  Co.,  7  Ohio,  271. 

But  Professor  Pomeroy's  statement,  above  quoted,  does  not  ac- 
curately describe  the  present  practice  of  the  United  States  courts. 
The  act  of  Congress  (March  3,  1875;  18  Stats.  470;  Rev.  Stats.,  § 
738)  providing  for  "substituted"  service  upon  absent  defendants  in 
suits  to  enforce  any  legal  or  equitable  lien  upon,  or  claim  to,  or  to 
remove  any  encumbrance  or  lien  or  cloud  upon  the  title  to  real  or 
personal  property  within  the  district  where  the  suit  is  brought, 
would,  it  is  pointed  out,  be  idle  legislation  unless  the  court  possessed 
the  power,  in  this  class  of  cases,  to  transfer  title  by  means  of  its 
decree,  without  the  agency  of  the  defendant:  See  Deck  v.  Whitman, 
«6  Fed.  873,  890,  and  cases  cited;  Single  v.  Scott  Paper  Mfg.  Co.,  5.3 
Fed.  553.     See,   also,   authorities   mentioned   in  the   next   section   fol 


§  15  EQUITABLE    REMEDIES.  26 

of  course,  classes  of  remedies  to  which  this  legislation 
cannot  apply — as,  for  example,  decrees  prohibiting  any 
act,  general  pecuniary  recoveries,  analogous  to  money 
judgments  at  law,  and  many  purely  ancillary  or  pro- 
visional reliefs.  "^^ 

§  15.  Validity  of  Decree  Based  upon  Service  by  PuMica- 
tion. — Equity  decrees  ordinarily  act  only  in  personam, 
and  can  therefore,  in  general,  have  effect  only  as  against 
parties  duly  served  with  process  within  the  territorial 
jurisdiction  of  the  court.^^  It  is  competent,  however, 
for  a  state  to  provide  methods  for  the  determination  of 
title  to  land  within  its  borders,  and  in  the  exercise  of 
such  power,  it  may  give  to  equity  decrees  relating  to 
or  affecting  the  title  to  land,  the  effect  of  judgments 
in  rem,  which,  therefore,  may  be  based  upon  service  of 
process  by  publication.  "It  is  true  that,  in  a  strict 
sense,  a  proceeding  in  rem  is  one  taken  directly  against 
property,  and  has  for  its  object  the  disposition  of  the 

lowing.  But  apart  from  the  efifect  of  this  act  of  Congress,  the  weight 
of  recent  authority  appears  to  be  in  favor  of  the  view  that  the  state 
legislation  in  question  does  not  deal  merely  with  a  matter  of  pro- 
cedure, but  establishes  a  substantive  right,  and  that  it  is  therefore 
within  the  power,  if  it  is  not  the  duty,  of  a  United  States  court  to 
conform  to  the  same,  in  an  appropriate  case:  Single  v.  Scott  Paper 
Mfg.  Co.,  55  Fed.  553;  Deck  v.  Whitman,  96  Fed.  873,  891;  Langdon 
V.  Sherwood,  124  U.  S.  74,  8  Sup.  Ct.  429,  31  L.  ed.  344.  In  the  last 
case  Mr.  Justice  Miller  remarks,  in  speaking  of  this  legislation: 
"The  validity  of  these  statutes  has  never  been  questioned,  so  far 
as  we  know,  though  long  in  existence  in  nearly  all  the  states  of  the 
Union.  There  can  be  no  doubt  of  their  efficacy  in  transferring  the 
title,  in  the  courts  of  the  states  which  have  enacted  them;  nor  do 
we  see  any  reason  why  the  courts  of  the  United  States  may  not  use 
this  mode  of  effecting  that  which  is  clearly  within  their  power." 

34  Pom.  Eq.  Jur.,  §  1317.  See,  also,  Merrill  v.  Beckwith,  163 
Mass.  503,  10  N.  E.  855;  Adams  v.  Heckscher,  80  Fed.  742,  83  Fed. 
281.  These  are  cases  in  which  there  was  no  personal  service  of  sum- 
mons. 

35  Hart  v.  Sansom,  110  U.  S.  151,  3  Sup.  Ct.  586,  28  L.  ed.  101,. 
Ames'  Cas.  in  Eq.  Jur.,  11. 


27  INTRODUCTION.  I  13 

property,  without  reference  to  the  title  of  individual 
claimants;  but,  in  a  larger  and  more  general  sense,  the 
terms  are  applied  to  actions  between  parties,  where  the 
direct  object  is  to  reach  and  dispose  of  property  owned 
by  them,  or  of  some  interest  therein.  Such  are  cases 
commenced  by  attachment  against  the  property  of 
debtors,  or  instituted  to  partition  real  estate,  foreclose 
a  mortgage,  or  enforce  a  lien.  So  far  as  they  affect 
property  in  the  state,  they  are  substantially  proceed- 
ings in  rem,  in  the  broader  sense  which  we  have  men- 
tioned."^^ Statutes  in  many  of  the  states  make  an 
equity  decree  the  equivalent  of  a  conveyance.  As  a  re- 
sult of  statute,  it  is  held  in  many  states  that  a  decree 
removing  a  cloud  from  or  quieting  title  to  land  within 
the  jurisdiction  may  be  based  upon  publication  of  sum- 
mons.^^     Likewise,  a  decree  for  specific  performance, 

36  Pennoyer  v,  Neff,  95  U.  S.  714,  24  L.  ed,    565,  per  Field,  J. 

37  "If  a  state  has  no  power  to  bring  a  nonresident  into  its  courts 
for  any  purposes  by  publication,  it  is  impotent  to  perfect  the  titles 
of  real  estate  within  its  limits  held  by  its  own  citizens;  and  a  cloud 
cast  upon  such  title  by  a  claim  of  a  nonresident  will  remain  for  all 
time  a  cloud,  unless  such  nonresident  shall  voluntarily  come  into  its 
courts  for  the  purpose  of  having  it  adjudicated.  But  no  such  im- 
perfections attend  the  sovereignty  of  the  state.  It  has  control  over 
property  within  its  limits;  and  the  condition  of  ownership  of  real 
estate  therein,  whether  the  owner  be  stranger  or  citizen,  is  subjection 
to  its  rules  concerning  the  holding,  the  transfer,  liability  to  obliga- 
tions, private  or  public,  and  the  modes  of  establishing  titles  thereto. 
It  cannot  bring  the  person  of  a  nonresident  within  its  limits — its 
process  goes  not  out  beyond  its  borders — but  it  may  determine  the 
extent  of  his  title  to  real  estate  within  its  limits;  and,  for  the  pur- 
pose of  such  determination,  may  provide  any  reasonable  methods  of 
imparting  notice":  Arndt  v.  Griggs,  134  U.  S.  316,  10  Sup.  Ct.  557, 
33  L.  ed.  918,  per  Brewer,  J,  See,  also,  Bryan  v.  Kennett,  113  U.  S. 
179,  5  Sup.  Ct.  407,  28  L.  ed.  908;  Ormsby  v.  Ottman,  85  Fed.  492, 
29  C.  C.  A.  295;  Morrison  v.  Marker,  93  Fed.  692;  Perkins  v.  Wake- 
ham,  86  Cal.  580,  21  Am.  St.  Rep,  67,  25  Pac.  51;  Knudson  v.  Litch- 
field, 87  Iowa,  111,  54  N.  W.  199;  Dillon  v.  Heller,  39  Kan.  599,  18 
Pac.  693;  Oldham  v.  Stephens,  45  Kan.  369,  25  Pac.  863;  Short  v. 
Caldwell,  155  Mass.  57,  28  N.  E.  1124;  Scarborough  v.  Myrick,  47 
Neb.  794,  66  N.  W.  867;  Robinson  v.  Kind,  23  Nev.  33t),  47  Pac.  1, 


§  16  EQUITABLE    REMEDIES.  28 

acting  upon  the  land  itself,  may  issue  upon  such  ser- 
vice.^^  Proceedings  for  the  partition  of  real  estate,  the 
foreclosure  of  mortgages  and  the  enforcement  of  liens 
upon  land  within  the  state,  are  also  within  the  class.^' 
In  all  of  these  cases  the  title  is  directly  affected  by  the 
decree. 

§  16.  Remedies  in  Personam  Beyond  the  Territorial  Juris- 
diction.— "Where  the  subject-matter  is  situated  within 
another  state  or  country,  but  the  parties  are  within  the 
jurisdiction  of  the  court,  any  suit  may  be  maintained 
and  remedy  granted  which  directly  affect  and  operate 
upon  the  person  of  the  defendant  and  not  upon  the  sub- 
ject-matter, although  the  subject-matter  is  referred  to 
in  the  decree,  and  the  defendant  is  ordered  to  do  or  to 
refrain  from  certain  acts  toward  it,  and  it  is  thus  ulti- 
mately but  indirectly  affected  by  the  relief  granted.^*^ 
This  rule  applies  to  the  United  States  courts^^  as  well 

977;  American  B.  &  L.  Assn.  v.  Mathews,  13  Tex.  Civ.  App.  425,  35 
S.  W.  690. 

38  Bostwell  V.  Otis,  9  How.  336,  13  L.  ed.  164  (semble).  In  general, 
see  Eobinson  v.  Kind,  23  Nev.  330,  47  Pac.  1,  977  (action  to  cancel 
deed);  Corson  v.  Shoemaker,  55  Minn.  386,  57  N.  W.  134  (reforma- 
tion); Seculovich  v.  Martin,  101  Cal.  673,  36  Pac.  387  (suit  to  com- 
pel conveyance  by  absent  trustee) ;  but  compare  Adams  v.  Hecksher, 
80  Fed,  742,  83  Fed.  281  (statute  does  not  apply,  when  complaint  re- 
quires a  personal  act  of  the  defendant). 

39  Martin  v.  Pond,  30  Fed.  15  (foreclosure);  Palmer  v.  McCor- 
mick,  28  Fed.  541  (same);  Eoller  v.  Holly,  176  U.  S.  398,  20  Sup.  Ct. 
410  44  L.  ed.  520  (action  to  enforce  vendor's  lien);  Wilson  v.  Mar- 
tin-Wilson etc,  Co.,  151  Mass.  515,  24  N.  E.  784  (creditor's  bill  to 
reach  patent  right  of  absent  defendant).  See,  also,  Pennoyer  v, 
Neff,  95  U.  S.  714,  24  L.  ed.  565, 

40  Pom.  Eq.  Jur,,  §  1318.  This  portion  of  Pom,  Eq.  Jur.  is  quoted 
in  Schmaltz  v.  York  Mfg.  Co.,  204  Pa.  St.  1,  93  Am.  St.  Kep.  782,  59 
L.  R,  A.  957,  53  Atl.  522;  Allen  v.  Buchanan,  97  Ala.  399,  38  Am.  St. 
Eep,  187,  11  South,  777;  Butterfield  v.  Nogales  Copper  Co.  (Ariz.),  80 
Pac,  345. 

41  Pom.  Eq.  Jur,  §  298. 


29  INTRODUCTION.  S  16 

as  to  the  state  courts,  and  is  also  well  settled  in  Eng- 
land."^2 

42  "The  courts  of  England  are,  and  always  have  been,  courts  of 
conscience,  operating  in  personam  and  not  in  rem;  and  in  the  exercise 
of  this  personal  jurisdiction  they  have  always  been  accustomed  to 
compel  the  performance  of  contracts  and  trusts  as  to  subjects  which 
were  not  locally  or  ratione  domicilii  within  their  jurisdiction":  Ew- 
ing  V.  Orr  Ewing,  L.  R.  9  App.  Gas.  34,  40,  per  Lord  Selborne, 

The  leading  English  case  is  Penn  v.  Lord  Baltimore,  1  Ves.  Sr. 
444,  2  Lead.  Gas.  Eq.,  4th  Am.  ed.,  1806,  where  the  subject  is  fully 
discussed  and  conclusions  are  reached  in  accordance  with  the  state- 
ments of  the  text.  See,  also,  Toller  v.  Garteret,  2  Vern.  494.  The 
leading  American  case  on  this  subject  is  Massie  v.  Watts,  6  Granch, 
148,  3  L.  ed.  181,  where  Marshall,  C.  J.,  laid  down  the  rule  as  fol- 
lows: "When  the  defendant  is  liable,  either  in  consequence  of  a  con- 
tract, or  as  trustee,  or  as  holder  of  a  legal  title  acquired  by  a  species 
of  mnla  fides  practiced  on  the  plaintiff,  the  principles  of  equity 
give  a  court  jurisdiction  wherever  the  person  may  be  found,  and  the 
circumstance  that  a  question  of  title  may  be  involved  in  the  inquiry, 
and  may  even  constitute  the  essential  point  on  which  the  case  de- 
pends,   does   not   seem   sufficient   to   arrest   the   jurisdiction In 

case  of  fraud,  of  trust,  or  of  contract,  the  jurisdiction  of  a  court  of 
chancery  is  sustainable  wherever  the  person  may  be  found,  although 
lands  not  within  the  jurisdiction  may  be  affected  by  the  decree." 
Hee  similar  expressions  in  Lindley  v.  O'Reilly,  50  N.  J.  L.  636,  7 
Am.  St.  Rep.  802,  15  Atl.  379,  1  L.  E.  A.  79;  Lynde  v.  Golumbus  C. 
&  I.  Ry.  Co.,  57  Fed.  993;  Smith  v.  Davis,  90  Gal.  25,  25  Am.  St.  Rep. 
94,  27  Pac.  27;  Johnson  v.  Gibson,  116  111.  302,  6  N.  E.  205;  De 
Klyn  V.  Watkins,  3  Sandf.  Ch.  185;  Davis  v.  Morris,  76  Va.  21. 

In  Pomeroy's  Equity  Jurisprudence,  §  1318,  "suits  for  specific  per- 
formance of  contracts,  for  the  enforcement  of  express  or  implied 
trusts,  for  relief  on  the  ground  of  fraud,  actual  or  constructive,  for 
the  final  accounting  and  settlement  of  a  partnership,  and  the  like" 
are  given  as  examples  of  the  rule.  The  following  cases  are  given 
as  illustrations: 

Specific  Performance.— Municipal  Inv.  Co.  v.  Gardiner,  62  Fed. 
954;  Montgomery  v.  United  States,  36  Fed.  4,  13  Saw.  383  (citing 
Pom.  Eq.  Jur.,  §  1317);  Penn  v.  Hayward,  14  Ohio  St.  302;  Epperly 
V.  Ferguson,  118  Iowa,  47,  91  N.  W.  816  (dictum);  Brown  v.  Des- 
mond, 100  Mass.  267;  Pingree  v.  Coffin,  12  Gray,  288  (specific  per- 
formance of  contract  to  assign  bond  for  conveyance  of  land  in  an- 
other state);  Newton  v.  Bronson,  13  N.  Y.  587,  67  Am.  Dec.  89; 
Cleveland  v.  Burrill,  25  Barb.  532;  Ward  v.  Arredondo,  Hopk.   Gh. 


§  17  EQUITABLE    EEMEDIES.  30 

§  17.     Same:  Limitations  of  the  Doctrine "On  the  other 

hand,  where  the  suit  is  strictly  local,  the  subject-matter 
is  specific  property,  and  the  relief  when  granted  is  such 

213,  14  Am.  Dec,  543;  Mitchell  v.  Bunch,  2  Paige,  €06,  22  Am.  Dec. 
669;  Sutphen  v.  Fowler,  9  Paige,  280;  Burnley  v.  Stevenson,  24  Ohio 
St.  474,  15  Am.  Kep.  621;  Western  Union  Tel.  Co.  v.  Pittsburg,  C.  C. 
&  St.  L.  E.  Co.,  137  Fed.  435. 

Partnership  Affairs. — Dunlap  v.  Byers,  110  Mich.  109,  67  N.  W. 
1067. 

Enforcement  of  Trust.— Smith  v.  Davis,  90  Cal.  25,  25  Am.  St.  Eep. 
94,  27  Pac.  27;  Gilliland  v.  Inabuit,  92  Iowa,  46,  60  N.  W.  211; 
Hawley  v.  James,  7  Paige,  213,  32  Am.  Dec.  623;  Dickinson  v. 
Hoomes'  Admr.,  8  Gratt.  353. 

Fraud.— Muller  v.  Dows,  94  U.  S.  444,  24  L.  ed.  207;  Johnson  v. 
Gibson,  116  111.  302,  6  N.  E.  205;  Clark  v.  Seagraves,  186  Mass.  430, 

71  N.  E.  813;  Noble  v.  Grandin,  125  Mich.  383,  84  N.  W.  465;  United 
States  v.  Maxwell  Land  Grant  Co.,  5  N.  Mex.  304,  21  Pac.  153;  De 
Klyn  V.  Watkins,  3  Sand.  Ch.  185. 

Suit  to  Remove  Cloud  on  Title. — Eemer  v.  McKay,  54  Fed.  432; 
Kirklin  v.  Atlas  S.  &  L.  Assn.  (Tenn.  Ch.  App.),  60  S.  W.  149. 

Suit  to  Reform  a  Deed.— Bethell  v.  Bethell,  92  Ind.  318. 

Foreclosure  of  Mortgages.— It  is  within  the  jurisdiction  of  an  equity 
court  to  order  the  sale  of  mortgaged  property  without  the  jurisdic- 
tion. Such  decrees  do  not  act  against  the  property  itself,  but  must 
be  enforced  by  process  against  the  defendant:  Muller  v.  Dows,  94  U. 
S.  444,  24  L.  ed.  207;  International  B.  &  T.  Co.  v.  Holland  Trust  Co., 
26  C.  G.  A.  469,  81  Fed.  422;  Woodbury  v.  Allegheny  &  K.  E.  E.  Co., 

72  Fed.  371;  Craft  v.  Indianapolis,  D.  &  W.  Ey.  Co.,  166  111.  580,  46 
N.  E.  1132  (quoting  Pom.  Eq.  Jur.,  §  1318);  Eaton  v.  McCall,  86 
Me.  346,  41  Am.  St.  Eep.  561,  29  Atl.  1103;  Union  Trust  Co.  v.  Olm- 
sted, 102  N.  Y.  729,  7  N.  E.  822;  Toller  v.  Carteret  (1705),  2  Vern. 
494.  This  jurisdiction  will  not  be  exercised,  however,  except  under 
unusual  or  extraordinary  conditions.  "Wherever  it  is  necessary  in 
order  to  prevent  loss  or  to  protect  the  rights  of  a  mortgagee,  it  may 
be  done;  for  instance,  in  the  ease  of  a  mortgage  upon  property  situ- 
ated both  within  and  without  the  state,  where  unless  a  sale  of  the 
entire  property  could  be  made  at  one  time,  great  loss  might  ensue, 
or  in  other  cases  where  an  equally  good  reason  existed.  But  ordin- 
arily we  think  that  the  holder  of  a  mortgage  should  be  required  to 
resort  to  the  remedies  of  the  courts  of  jurisdiction  in  which  the  land 
is  situated":  Eaton  v.  McCall,  86  Me.  346,  41  Am.  St.  Eep.  561,  29 
Atl.  1103.     To  the  effect  that  a  sale  of  land  in  another  state  by  a 


31  INTRODUCTION.  ill 

that  it  must  act  directly  upon  the  subject-matter  and 
not  merely  upon  the  person  of  the  defendant,  the  juris- 
diction must  be  exercised  in  the  state  where  the  subject- 
matter  is  situated."^^  A  decree  may  have  extra-terri- 
torial effect  where  the  imprisonment  of  the  person  is 
the  most  proper  means  to  elfect  that  which  is  decreed 
to  be  done,  viz.,  the  payment  of  money,  making  a  con- 
veyance, or  the  like.  "But  where  no  obedience  of  the 
person  imprisoned,  or  any  act  of  his,  can  sufficiently 
execute  such  a  decree,  there  it  is  in  vain  to  hold  such  a 
plea."^*  Accordingly,  it  is  generally  held  that  a  bill  to 
partition  realty  must  be  brought  in  the  state  in  which 

referee  under  foreclosure  is  nugatory,  see  Farmers'  L.  &  T.  Co.  v. 
Postal  Tel.  Co.,  55  Conn.  334,  3  Am.  St,  Eep.  53,  11  Atl.  184. 

In  general,  to  the  effect  that  a  court  of  equity  may  compel  a  con- 
veyance of  property  outside  its  jurisdiction,  see  Muller  v.  Dows,  94 
U.  S.  444,  24  L.  ed.  207;  Guarantee  Trust  &  S.  D.  Co.  v.  Delta  &  Pine 
Land  Co.,  43  C.  C.  A.  396,  104  Fed.  5;  Butterfield  v.  Nogales  Copper 
Co.  (Ariz.),  80  Pac.  345;  McGee  v.  Sweeney,  84  Cal.  100,  23  Pac.  1117; 
Winn  V.  Strickland,  34  Fla.  630,  16  South.  606;  Hayes  v.  O'Brien, 
149  111.  403,  37  N.  E.  73,  23  L.  R.  A.  555  (land  in  another  county); 
Johnson  v.  Gibson,  116  111.  294,  6  N.  E.  205  (suit  by  creditors  to  set 
aside  fraudulent  conveyance) ;  Barringer  v.  Ryder,  119  Iowa,  121,  93 
N.  W.  56;  McQuerry  v,  Gilliland,  89  Ky.  434,  12  S.  W.  1037,  7  L.  R. 
A.  454;  Carver  v.  Peck,  131  Mass.  292  (suit  to  restrain  the  transfer 
of  property  outside  the  jurisdiction  of  the  court) ;  Noble  v.  Gran- 
din,  125  Mich.  383,  84  N.  W.  465;  Vreeland  v.  Vreeland,  49  N.  J.  Eq. 
322,  24  Atl.  551;  Gardner  v.  Ogden,  22  N.  Y.  327,  332-339,  78  Am. 
Dec.  192;  Bailey  v.  Ryder,  10  N.  Y.  363;  Vaught  v.  Meador,  99  Va. 
569,  86  Am.  St.  Rep.  908,  39  S.  E.  225;  Poindexter  v.  Burwell,  82 
Va.  507;  Gates  v.  Paul,  117  Wis.  170,  94  N.  W.  55.  See,  also,  Wood 
V.  Warner,  15  N.  J.  Eq.  81  ("the  power  of  the  court  to  decree  the 
settlement  of  the  accounts  between  the  parties,  and  the  payment  of 
the  balance,  if  any  found  due,  and  to  enforce  such  decree  in  per- 
sonam cannot  be  qestioned"). 

43  Pom.  Eq.  Jur.,  §§  1318,  298.  For  illustration,  see  Cooley  v. 
Scarlett,  38  111.  316,  87  Am.  Dec.  298  (cancellation  of  deed  recorded 
in  another  state  refused). 

44  Carteret  v.  Petty,  2  Swans.  323^  This  was  a  bill  for  account 
und  partition. 


i  18  EQUITABLE    EEMEI>IEa  32 

the  land  is  situated.'"'  Likewise,  it  would  seem  tliat  an 
action  to  abate  a  nuisance  must  be  maintained  in  the 
state  in  which  the  land  is.^® 

§   18.     Injunctions  Against  Acts  in  Foreign  States The 

courts  are  not  in  entire  harmony  as  to  when  an  injunc- 
tion will  issue  to  restrain  acts  in  another  state.  It  is 
well  settled  that  bills  to  enjoin  the  prosecution  of  suits 
or  the  enforcement  of  judgments  in  other  jurisdictions 
may,  upon  proper  showing,  be  sustained.^'^  As  to  torts 
in  general,  however,  there  is  a  conflict  of  authority.  It 
is  sometimes  held  that  suits  to  enjoin  a  trespass  or  nui- 
sance are  purely  local  and  consequently  come  within 
the  limitation  stated  in  the  preceding  paragraph.^* 
On  the  other  hand,  it  is  held  by  other  courts  that  such 
suits  are  maintainable  if  jurisdiction  of  the  person  is 
obtained.'** 

4  5  Carteret  v.  Petty,  2  Swans.  323;  Schick  v.  Whitcomb  (Neb.), 
94  N.  W.  1023;  Poindexter  v.  Burwell,  82  Va.  507;  Wimer  v.  Wimer, 
82  Va.  890,  3  Am.  St.  Rep.  126,  5  S.  E.  536;  Pillow  v.  Southwest  Va. 
Imp.  Co.,  92  Va.  144,  53  Am.  St.  Eep.  804,  23  S.  E.  32;  but  see  Vree- 
land  V.  Vreeland,  49  N.  J.  Eq.  322,  24  Atl,  551,  affirming  48  N.  J.  Eq. 
56,  21  Atl.  627. 

46  People  V.  Central  R.  E.  Co.,  42  N.  Y.  283;  Morris  v.  Eemington, 
j  Pars.  Eq.  Cas.  389. 

47  This  subject  is  discussed  at  length,  post,  Vol.  II.  See,  also,  Cole 
V.  Cunningham,  133  U.  S.  107,  10  Sup.  Ct.  269,  33  L.  ed.  538;  Pickett 
V.  Ferguson,  45  Ark.  177,  55  Am.  Eep.  545;  Hawkins  v.  Ireland,  64 
Minn.  339,  58  Am.  St.  Eep.  534,  67  N.  W.  73;  Kendall  v.  McClure 
Coke  Co.,  182  Pa.  St.  1,  61  Am.  St.  Eep.  688,  37  Atl,  823;  Allen  v. 
Buchanan,  97  Ala.  399,  38  Am.  St.  Eep.  187,  11  South.  777,  and  case» 
cited  (injunction  against  foreign  garnishment  suit  brought  to  evade 
the  laws  of  plaintiff's  and  defendant's  domicile);  Mead  v.  Merritt,. 
2  Paige,  402. 

48  Northern  Indiana  E.  Co.  v.  Michigan  Central  E.  Co.,  15  How. 
233,  14  L.  ed.  674;  Miss.  &  Mo.  R.  R.  v.  Ward,  2  Black,  485,  17  L. 
ed.  311. 

49  Great  Falls  Mfg.  Co.  v.  Worster,  23  N.  H.  462;  Alexander  v. 
Tolleston  Club,  110  111.  65.     See  the  following  miscellaneous  cases  in 


33  INTEODUCTION.  i  19 

III. 

§  19.  Laches:  In  General — Probably  no  principles  of 
equity  have  been  the  subject  of  more  contradictory  ju- 
dicial statements  than  those  relating  to  the  effect  of 
laches  or  delay.  The  resulting  confusion  is  the  more 
deplorable  owing  to  the  frequency  with  which  the  de- 
fense is  asserted,  and  the  favor  with  which  it  appears 
to  be  regarded  by  many  courts.^''  Apart  from  the  ele- 
ment of  uncertainty  shared  by  it  in  common  with  other 
equitable  defenses,  the  application  of  which  must  neces- 
sarily rest  in  judicial  discretion,  there  appears  to  be  a 
fundamental  difference  of  opinion  as  to  the  ultimate 
reasons  in  ethics  or  in  public  policy  upon  which  the 
defense  of  laches  should  be  based. ^^  Tlie  subject  is 
further  complicated  by  a  hopeless  confusion  in  nomen- 
clature. The  term  "acquiescence,"  in  one  of  its  two 
legal  significations,  is  often  used  interchangeably  with 
the  term  "laches"  'p  while  in  the  innumerable  cases  re- 

which  injunctions  were  issued:  Schmaltz  v.  York  Mfg.  Co.,  204  Pa.  St. 
1,  93  Am.  St.  Eep.  782,  53  Atl.  522,  59  L.  R.  A.  907  (injunction 
against  removing  fixtures  from  property  in  another  state);  Frank 
V.  Peyton,  82  Ky.  150  (injunction  against  disposing  of  property 
pending  suit).  The  same  principle  has  been  held  to  apply  to  suits 
for  injunction  against  trespass  in  another  county:  Jennings  v.  Beale, 
358  Pa.  St.  283,  27  Atl.  948;  Clad  v.  Paist,  181  Pa.  St.  148,  37  Atl. 
194.  It  is  said  in  Western  Union  Tel.  Co.  v.  Western  &  Atlantic  E., 
8  Baxt.  54,  that  equity  will  not  make  a  decree  which  it  cannot  en- 
force by  its  own  authority. 

50  See  post,  §  23,  note  66. 

51  Compare  the  passages  quoted  in  §§  21,  23,  post. 

52  The  two  significations  of  "acquiescence"  are  clearly  stated  in 
De  Bussche  v.  Alt,  L.  E.  8  Ch.  Div.  286,  314;  see  the  passage  quoted 
in  full,  2  Pom.  Eq.  Jur.,  §  965,  note  1;  and  particularly,  the  follow- 
ing portion:  "The  term  'acquiescence,'  ....  if  used  at  all,  must 
have  attached  to  it  a  very  diiferent  signification,  according  to  whether 
the   acquiescence   alleged   occurs   while   the   act   acquiesced   in   is   in 

progress  or  only  after  it  has  been  completed But  when   once 

the  act  is  completed,  without  any  knowledge  or  assent  upon  the  part. 

Equitable  Eemedies,  Vol.  I — 3 


§   ^S  EQUITABLE    EEMEDIES.  34 

lating  to  relief  from  fraud,  actual  or  constructive,  the 
courts  have  seldom  been  at  pains  to  distinguish  the  gen- 
eral doctrines  relating  to  laches  from  the  particular  doc- 
trine as  to  "confirmation"  of  the  fraudulent  act,  and 
the  necessity  of  prompt  election  to  rescind  by  the  de- 
frauded party.^^  These  topics  have  been  sufficiently 
treated  elsewhere  ;°*  the  following  paragraphs  merely 

of  the  person  whose  right  is  infringed,  the  matter  is  to  te  deter- 
mined upon  very  different  legal  considerations.  A  right  of  action 
has  then  vested  in  him  which,  at  all  events  as  a  general  rule,  can- 
not be  divested  without  accord  and  satisfaction,  or  release  under 
seal.  Mere  submission  to  the  injury  for  any  time  short  of  the  period 
limited  by  statute  for  the  enforcement  of  the  right  of  action,  cannot 
take  away  such  right,  although  under  the  name  of  laches  it  may 
afford  a  ground  for  refusing  relief  under  some  peculiar  circum- 
stances," etc.  For  other  definitions  of  "acquiescence,"  see  Hall  v. 
Otterson,  52  N.  J.  Eq.  522,  28  Atl.  907;  Babb  v.  Sullivan,  43  S,  C. 
436,  21  S.  E.  277.  The  following  paragraphs  concern  the  effect  of 
delay  by  the  injured  party,  after  the  commission  of  the  injury, 
whether  or  not  that  delay  is  termed  by  the  courts  "acquiescence" 
or  something  else. 

53  Cases  involving  the  doctrine  as  to  "ratification,"  "confirma- 
tion" or  "election  to  rescind"  are  excluded  from  the  following  dis- 
cussion. For  instances  see,  in  addition  to  those  cited  in  the  para- 
graphs of  Pom.  Eq.  Jur.,  mentioned  below,  and  post,  in  chap- 
ter on  Cancellation,  Baker  v.  Cummings,  169  U.  S.  189,  18  Sup. 
Ct.  367,  42  L.  ed.  711  (enjoying  profits  of  transaction  with  knowledge 
of  fraud);  Eugan  v.  Sabin,  53  Fed.  415,  418,  3  C.  C.  A.  578,  580,  10 
U.  S.  App.  519,  530  (necessity  of  prompt  election) ;  Kinne  v.  Webb, 
64  Fed.  34,  4  C.  C.  A.  170,  12  U.  S.  App.  137,  affirming  49  Fed.  512 
(same);  Seheftel  v.  Hays,  58  Fed.  457,  7  C.  C.  A.  308,  19  U.  S.  App. 
220;  Mudsill  Mining  Co.  v.  Watrous,  61  Fed.  163,  9  C.  C.  A.  415  (de- 
lay for  purpose  of  securing  evidence  of  the  fraud  does  not  show 
ratification);  Brown  v.  Brown,  142  111.  409,  32  N.  E.  500;  Provident 
Loan  Trust  Co.  v.  Mcintosh,  68  Kan.  452,  75  Pac.  498;  Norfolk  & 
N.  B.  Hosiery  Co.  v.  Arnold,  49  N.  J.  Eq.  390,  23  Atl.  514;  Hilliard 
V.  Allegheny  Geometrical  Wood  Carving  Co.,  173  Pa.  St.  1,  34  Atl. 
231;  Dunn  v.  Columbia  Nat.  Bank,  204  Pa.  St.  53,  53  Atl.  519. 

54  See  2  Pom.  Eq.  Jur.,  §  817  (acquiescence  as  a  quasi  estoppel 
upon  rights  of  remedy);  §§  818-820  (acquiescence  as  a  true  estoppel 
upon  rights  of  property  or  of  contract);  §  897  (necessity  of  prompt 
disaffirmance  of  fraudulent  transaction);  §§  916,  917  (ratification  of, 


35  INTRODUCTION.  S  20 

attempt  to  set  forth  the  more  important  statements  in 
the  recent  cases  defining:  (1)  The  attitude  of  courts  of 
equity  to  statutes  of  limitations,  in  the  cases  where 
those  statutes  are  not,  by  their  terms,  binding  upon 
such  courts;  (2)  the  general  view,  that  the  doctrine  of 
laches  is  an  application  of  the  general  principles  of 
estoppel;  (3)  a  broader  view,  chiefly  expressed  in  a 
series  of  important  decisions  by  the  United  States  su- 
preme court;  (4)  circumstances  which  operate  as  an 
excuse  for  delay,  or  tend  to  minimize  its  effect  in  equity. 

§  20.     Following  the  Analogy  of  Statutes  of  Limitations 

The  following  language  of  an  able  federal  judge  has 
been  frequently  referred  to  as  defining  the  attitude  of 
courts  of  equity  to  the  statutes  of  limitations,  in  those 
cases,  where,  from  the  nature  of  the  relief  sought,  such 
statutes  are  capable  of  affording  guidance.^^  "In  the 
application  of  the  doctrine  of  laches,  the  settled  rule  is 
that  courts  of  equity  are  not  bound  by,  but  that  they 
usually  act  or  refuse  to  act  in  analogy  to,  the  statute  of 
limitations  relating  to  actions  at  law  of  like  character.^^ 
The  meaning  of  this  rule  is  that,  under  ordinary  cir- 
cumstances, a  suit  in  equity  will  not  be  stayed  for 
laches  before,  and  will  be  stayed  after  the  time  fixed 
by  the  analogous  statute  of  limitations  at  law;  but  if 

and  acquiescence  in,  fraudulent  transaction) ;  §  964  (confirmation  or 
ratification  in  cases  of  fraud,  actual  or  constructive) ;  §  965  (ac- 
quiescence and  lapse  of  time  in  cases  of  fraud,  actual  or  constructive). 

55  Kelley  v,  Boettcher,  85  Fed.  55,  62,  29  C.  C.  A.  14,  21,  56  U.  S. 
App.  363,  383,  per  Sanborn,  C.  J,  (suit  to  rescind  sale  of  one-sixth 
of  a  mining  claim,  and  to  obtain  an  accounting  and  recovery  of  the 
proceeds  thereof). 

56  Citing  Rugan  v.  Sabin,  10  U.  S.  App.  519,  534,  3  C.  C.  A.  578, 
582,  53  Fed.  415,  420;  Billings  v.  Smelting  Co.,  10  U.  S.  App.  1,  62,  2 
C.  C.  A.  252,  262,  263,  51  Fed.  338,  349;  Bogan  v.  Mortgage  Co., 
27  U.  S.  App.  346,  357,  11  C.  C.  A.  128,  135,  63  Fed.  192,  199;  Kinne 
V.  Webb,  12  U.  S.  App.  137,  148,  4  C.  C.  A.  170,  177,  54  Fed.  34,  40; 


§  20  EQUITABLE    REMEDIES.  36 

unusual  conditions  or  extraordinary  circumstances 
make  it  inequitable  to  allow  the  prosecution  of  a  suit 
after  a  briefer,  or  to  forbid  its  maintenance  after  a 
longer,  period  than  that  fixed  by  the  statute,  the  chan- 
cellor will  not  be  bound  by  the  statute,  but  will  deter- 
mine the  extraordinary  case  in  accordance  with   the 

equities    which    condition    it When    a    suit    is 

brought  within  the  time  fixed  by  the  analogous  statute, 

Scheftel  v.  Hays,  19  IT.  S.  App.  220,  226,  7  C.  C.  A.  308,  312,  58  Fed. 
457,  460;  "Wagner  v.  Baird,  7  How.  234,  258,  12  L.  ed.  681;  Godden 
V.  Kimmell,  99  U.  S.  201,  210,  25  L.  ed.  431;  Wood  v.  Carpenter,  101 
U.  S.  135,  139,  25  L.  ed.  807. 

See,  in  general.  Baker  v.  Cummings,  169  U.  S.  189,  18  Sup.  Ct.  367, 
42  L.  ed.  711  (no  jurisdiction  when  an  adequate  remedy  at  law  has 
been  barred  by  limitation);  Church  of  Christ  v,  Reorganized  Church 
etc.,  70  Fed.  179,  17  C.  C.  A.  387,  36  U.  S.  App.  110;  Kelley  v. 
Boettcher,  85  Fed.  55,  62,  56  U.  S.  App.  363,  383,  29  C.  C.  A.  14,  21; 
Contine-ntal  Nat.  Bank  v.  Heilman,  86  Fed.  514,  30  C.  C.  A.  232;  " 
Williamson  v.  Monroe,  101  Fed.  322;  Nash  v.  Ingalls,  101  Fed.  645, 
41  C.  C.  A.  545  (affirming  79  Fed.  510);  Stevens  v.  Grand  Central  Min. 
Co.  (C.  C.  A.),  133  Fed.  28;  Moore  v.  Moore,  103  Ga.  517,  30  S.  E. 
535;  Sherwood  v.  Baker,  105  Mo.  472,  24  Am.  St.  Eep.  399,  16  S.  W. 
938  (one  having  equitable  title  to  realty,  although  there  is  no  right 
to  recover  possession  at  law,  can  lose  his  right  only  by  adverse  poa- 
session  for  the  time  required  to  extinguish  a  legal  title) ;  Colton  v. 
Depew,  60  N.  J.  Eq.  454,  83  Am.  St.  Eep.  650,  46  Atl.  728  (fore- 
closure of  mortgage);  Church  v.  Winton,  196  Pa.  St.  107,  46  Atl. 
363;  Maxwell  v.  Wilson,  54  W.  Va.  495,  46  S.  E.  349;  Newberger  v. 
Wells,  51  W.  Va.  624,  42  S.  E.  625;  Waldron  v.  Harvey,  54  W.  Va. 
608,  102  Am.  St.  Eep.  959,  46  S.  E.  603. 

Tn  the  following  cases  relief  was  refused  because  the  correspond- 
ing legal  remedy  was  barred  by  the  statute  of  limitations:  Kansas 
City  Southern  E.  Co.  v.  Stevenson,  135  Fed.  553;  Kinne  v.  Webb,  54 
Fed.  34,  4  C.  C.  A.  170,  12  U.  S.  App.  137  (bill  to  set  aside  transfer 
of  personal  property);  Southern  Pac.  E.  Co.  v.  Groeck,  68  Fed.  609; 
Hale  V.  Coffin,  120  Fed.  470  (bill  to  follow  properties  of  a  deceased 
stockholder  and  to  charge  legatee,  based  on  a  legal  demand) ;  Ela  v. 
Ela,  158  Mass.  54,  32  N.  E.  957  (action  for  accounting  by  guardian, 
when  plaintiff  might  have  brought  trover) ;  St.  John  v.  Coates,  63 
Hun,  460,  18  N.  Y.  Supp.  419;  Drake  v.  Wild,  70  Vt.  52,  39  Atl.  248. 
An  instructive  instance  of  the  granting  of  relief  by  a  federal  court, 
though   the  period  prescribed   by  the  statute  of  limitations  of  the 


37  INTRODUCTION.  |  20 

the  burden  is  on  the  defendant  to  show,  either  from  the 
face  of  the  bill  or  by  his  answer,  that  extraordinary  cir- 
cumstances exist  which  require  the  application  of  the 
doctrine  of  laches;  and,  when  such  a  suit  is  brought 
after  the  statutory  time  has  elapsed,  the  burden  is  on 
the  complainant  to  show,  by  suitable  averments  in  his 
bill,  that  it  would  be  inequitable  to  apply  it  to  his 
case."^^     It  should  be  noticed  that  the  courts  of  the 

state  had  run,  is  found  in  the  very  recent  case  of  Stevens  v.  Grand 
Central  Min.  Co.  (C.  C.  A.),  133  Fed.  28,  relying  on  Kelley  v. 
Boettcher. 

In  the  following  cases  the  period  of  the  statute  had  not  run,  and 
the  delay  was  not  fatal:  Fowle  v.  Park,  48  Fed.  789;  Jonathan  Mills 
Mfg.  Co.  V.  Whitehurst,  60  Fed.  81  (suit  for  infringement  of  patent) ; 
Kitehie  v.  Sayers,  100  Fed.  520;  Williamson  v.  Monroe,  101  Fed. 
322;  Ide  V.  Trorlicht,  Duncker  &  Eenard  Carpet  Co.,  115  Fed.  137, 
148;  Brown  v.  Arnold  (C.  C.  A.),  131  Fed.  723;  Davis  v.  Williams, 
121  Ala.  542,  25  South.  704;  First  Nat.  Bank  v.  Nelson,  106  Ala.  535, 
18  South.  154;  Gordon  v.  Johnson,  186  111.  18,  57  N.  E.  790;  Ross 
V.  Payson,  160  111.  358,  43  N.  E.  399;  Moore  v.  Dick  (Mass.),  72  N.  E. 
967;  Oliver  v.  Lansing,  48  Neb.  338,  67  N.  W.  195;  Michigan  Trust 
Co.  v.  City  of  Red  Cloud  (Neb.),  92  N.  W.  900;  Condit  v.  Bigalow, 
64  N.  J.  Eq.  504,  54  Atl.  160;  Renshaw  v.  First  Nat.  Bank  (Tenn. 
Ch.  App.),  63  S.  W.  194;  Watson  v.  Texas  &  P.  Ry.  Co.  (Tex.  Civ. 
App.),  73  S.  W.  830;  Ludington  v.  Patton,  111  Wis.  208,  86  N.  W. 
571. 

57  Sanborn,  Cir.  J.,  continues:  "The  cases  of  Wagner  v.  Baird,  7 
How.  234,  12  L.  ed.  €81;  Godden  v.  Kimmell,  99  U.  S.  201,  25  L.  ed. 
431;  Wood  v.  Carpenter,  101  U.  S.  135,  139,  25  L.  ed.  807,  and  Rugan 
V.  Sabin,  10  tJ.  S.  App.  519,  534,  3  C.  C.  A.  578,  582,  53  Fed.  415,  420, 
belong  to  the  class  of  cases  in  which  the  doctrine  of  laches  was  ap- 
plied after  the  statute  of  limitations  had  run.  The  cases  of  Billings 
V.  Smelting  Co.,  10  U.  S.  App.  1,  62,  2  C.  C.  A.  252,  262,  263,  51  Fed. 
338,  349,  and  Began  v.  Mortgage  Co.,  27  U.  S.  App.  347,  357,  11 
C.  C.  A.  12/^,  135,  63  Fed.  192,  199,  belong  to  the  class  of  cases  in 
which  the  court  refused  to  apply  the  doctrine  of  laches  within  the 
time  fixed  bv  the  statute."  See,  also,  Boynton  v.  Haggart,  120  Fed. 
819;  Kansas   City  Southern  R.  Co.  v.  Stevenson,  135  Fed.  553. 

The  effect  of  statutes  which  are  by  their  very  terms  applicable 
to  suits  in  e(juity  is  well  described  in  a  very  recent  judgment  of  the 
supreme  court  of  the  United  States:  Patterson  v.  Hewitt,  195  U.  S. 
309,  2.''  Unj)    ^t.  35,  49  L.  ed. ,  by  Mr.  Justice  Brown:  "When  the 


I  20  EQUITABLE    EEMEDIES.  3S 

United  States  are  not  bound,  by  way  of  analogy  or  other- 
wise, by  the  statutes  of  limitations  of  the  several  states, 
in  cases  where  to  apply  such  statutes  would  be  to  im- 

Btatute  is  in  terms  applicable  to  suits  in  equity,  as  well  as  at  law, 
it  is  ordinarily  construed,  in  cases  demanding  equitable  relief,  as 
fixing  a  time  beyond  which  the  suit  will  not,  under  any  circumstances, 
lie;  but  not  as  precluding  the  defense  of  laches,  provided  there  has 
been  unreasonable  delay  within  the  time  limited  by  the  statute.  In 
an  action  at  law,  courts  are  bound  by  the  literalism  of  the  statute; 
but  in  equity  the  question  of  unreasonable  delay  within  the  statutory 
limitation  is  still  open:   Alsop  v.  Kiker,  155  U.  S.  448-460,  39  L.  ed. 

218-222,  15  Sup.  Ct.  162 If  this  were  not  so,  it  would  seem  to 

follow  that  in  the  code  states,  where  there  is  but  one  form  of  action 
applicable  both  to  proceedings  of  a  legal  and  equitable  nature,  a 
statute  of  limitations,  general  in  its  terms,  would  apply  to  suits  of 
both  descriptions,  and  the  doctrine  of  laches  become  practically  obso- 
lete. This,  however^  is  far  from  being  the  case,  as  questions  of 
laches  are  as  often  arising  and  being  discussed  in  the  code  states 
as  in  the  others.  In  a  few  cases  where  the  statute  of  limitations 
is  made  applicable  in  terms  to  suits  in  equity,  it  haS  been  construed 
as  allowing  a  suit  to  be  begun  at  any  time  within  the  period  limited 
by  the  statute,  notwithstanding  the  intermediate  laches  of  the  com- 
plainant, although  in  those  cases  it  will  usually  be  found  that  the 
language  of  the  statute  is  explicit  an  J  imperative:  Hill  v.  Nash,  73 
Miss.  849,  19  South.  709;  Washington  v.  Soria,  73  Miss.  665,  55  Am. 
St.  Eep.  555,  19  South.  485.  But  the  weight  of  authority  is  the 
other  way,  and  we  consider  the  better  rule  to  be  that,  even  if  the 
statute  of  limitations  be  made  applicable,  in  general  terms,  to  suits 
in  equity,  and  not  to  any  particular  defense,  the  defendant  may 
avail  himself  of  the  laches  of  the  complainant,  notwithstanding  the 
time  fixed  by  the  statute  has  not  expired.  This  has  been  expressly 
held  in  Alabama  (Scruggs  v.  Decatur  Mineral  &  Land  Co.,  86  Ala. 
173,  5  South.  440),  in  Missouri  (Bliss  v.  Prichard,  67  Mo.  181;  Kline 
V.  Vogel,  90  Mo.  239,  1  S.  W.  733,  2  S.  W.  408),  and  in  New  York 
(Calhoun  v.  Millard,  121  N.  Y.  69,  8  L.  E.  A.  248,  24  N.  E.  27).  In 
the  last  case  the  question  is  discussed  at  considerable  length  by 
Chief  Judge  Andrews,  and  the  conclusion  reached  that  'the  period 
of  limitations  of  equitable  actions  fixed  by  the  statute  is  not,  where 
a  purely  equitable  remedy  is  invoked,  equivalent  to  a  legislative  di- 
rection that  no  period  short  of  that  time  shall  be  a  bar  to  relief  in 
any  case,  or  precludes  the  court  from  denying  relief  in  accordance 
with  equitable  principles  for  unreasonable  delay,  although  the  full 
period  of  ten  years  has  not  elapsed  since  the  cause  of  action  ac 
crued. '  " 


89  INTKODUCTION.  §  21 

pair  or  abriclQ:e  the  equity  jurisdiction  of  such  courts;''® 
as  for  example,  statutes  which  alter  the  settled  rule 
of  equity  that  a  cause  of  action  for  fraud  accrues  at  the 
time  when  the  fraud  was  or  should  have  been  discov- 
ered.^^ 

§  21.  General  Doctrine:  Laches  is  Prejudicial  Delay. — 
The  true  doctrine  concerning  laches  has  never  been  more 
concisely  and  accurately  stated  than  in  the  following 
language  of  an  able  living  judge:  "Laches,  in  legal  sig- 
nificance, is  not  mere  delay,  but  delay  that  works  a  dis- 
advantage to  another.  So  long  as  parties  are  in  the 
same  condition,  it  matters  little  whether  one  presses 
a  right  promptly  or  slowly,  within  limits  allowed  by 
law;  but  when,  knowing  his  rights,  he  takes  no  step  to 
enforce  them  until  the  condition  of  the  other  party  has, 
in  good  faith,  become  so  changed  that  he  cannot  be  re- 
stored to  his  former  state,  if  the  right  be  then  enforced, 
delay  becomes  inequitable,  and  operates  as  estoppel 
against  the  assertion  of  the  right.     The  disadvantage 

58  Kirby  v.  Lake  Shore  &  M.  S.  R.  Co.,  120  U.  S.  137,  7  Sup.  Ct. 
430,  30  L.  ed.  571;  Stevens  v.  Grand  Central  Min.  Co.  (C.  C.  A.), 
133  Fed.  28;  Johnston  v.  Roe,  1  McCrary,  165,  1  Fed.  692,  695;  Tice 
V,  School  District,  5  McCrary,  362,  17  Fed.  283,  285.  But  "although 
the  ordinary  chancery  jurisdiction  of  the  courts  of  the  United  States 
cannot  be  abridged  by  state  statutes,  they  recognize  those  of  the 
state  in  which  the  court  is  sitting,  limiting  the  time  for  bringing 
suits,  and  adopt  them,  if  they  do  not  act  in  obedience  to  them. 
Accordingly,  they  will  adjudge,  in  cases  over  which  there  is  a  con- 
current jurisdiction  by  courts  of  law  and  equity,  that  lapse  of  time 
to  be  a  bar  in  equity  which  would  have  constituted  a  bar  if  the  ac- 
tion had  been  at  law":  Per  Wallace,  Cir.  J.,  in  Miles  v.  Vivian,  79 
Fed.  848,  25  C.  C.  A,  208;  and  see  Pulliam  v.  Pulliam,  10  Fed.  30; 
Percy  v,  Cockrill,  53  Fed.  872,  4  C.  C.  A.  73,  10  U.  S.  App.  574;  Hale 
V.  Coffin,  120  Fed.  470;  Higgins  Oil  &  Fuel  Co.  v.  Snow,  113  Fed.  433, 
51   C.   C.  A.  267. 

59  Kirby  v.  Lake  Shore  &  M.  S.  Ey.  Co.,  120  U.  S.  137,  7  Sup.  Ct. 
430,   30   L.    ed.   571. 


§  21  EQUITABLE    EEMEDIES.  40 

may  come  from  loss  of  evidence,  change  of  title,  inter- 
vention of  equities,  and  other  causes ;  but  when  a  court 
sees  negligence  on  one  side  and  injury  therefrom  on  the 
other  it  is  a  ground  for  denial  of  relief."^®     The  follow- 

60  Chase  v.  Chase,  20  E.  I.  202,  37  Atl.  804,  by  Stinness,  C.  J.  See, 
also,  Abraham  v.  Ordway,  158  U.  S.  416,  15  Sup.  Ct.  894,  39  L.  ed. 
1036;  Willard  v.  Wood,  1G4  U.  S.  502,  524,  17  Sup.  Ct.  176,  41  L.  ed. 
531;  Penn  Mutual  Life  Ins.  Co.  v.  City  of  Austin,  168  U.  S.  685,  18 
Sup.  Ct.  223,  42  L.  ed.  627  (no  injunction  against  enforcement  of  or- 
dinance for  municipal  waterworks,  where  there  has  been  a  delay  of 
five  years,  during  which  bonds  had  been  issued  and  a  large  part 
of  the  proceeds  expended);  O'Brien  v.  Wheelock,  184  U.  S.  450,  22 
Sup.  Ct.  354,  46  L.  ed.  636,  affirming  95  Fed.  883,  37  C.  C.  A.  309 
("it  is  not  a  mere  matter  of  lapse  of  time,  but  of  change  of  situa 
tion  during  neglectful  repose,  rendering  it  inequitable  to  afford  re 
lief");  Mclntire  v.  Pryor,  173  U.  S.  38,  19  Sup.  Ct.  352,  43  L.  ed 
606  (affirming  10  App.  D.  C.  432);  Hammond  v.  Hopkins,  143  U.  S, 
224,  250,  12  Sup.  Ct.  418,  36  L.  ed.  134;  Wilson  v.  Smith,  117  Fed 
707;  State  Trust  Co.  v.  Kansas  City  P,  &  G.  E.  Co.,  120  Fed.  398 
London  &  S.  F.  Bank,  Ltd.,  v.  Dexter  Horton  &  Co.,  126  Fed.  593 
Jonathan  Mills  Mfg.  Co.  v.  Whitehurst,  60  Fed,  81;  Lasher  v.  Mc 
Creery,  66  Fed.  834;  O'Brien  v.  Wheelock,  78  Fed.  673;  Bartlett  v, 
Ambrose,  78  Fed.  839,  24  C.  C.  A.  397;  Wheeling  Bridge  &  Terminal 
Ey.  Co.  V.  Eeymann  Brewing  Co.,  90  Fed.  189,  32  C.  C.  A.  571  (delay 
of  seven  years  not  laches  when  no  change  in  condition);  Hanchett 
V.  Blair,  100  Fed.  817,  41  C.  C.  A.  76;  Williamson  v.  Monroe,  101 
Fed.  322;  Bissell  Chilled  Plow  Works  v.  T.  M.  Bissell  Plow  Co.,  121 
Fed.  357  (mere  delay  of  six  years  no  bar  to  injunction  against  unfair 
competition);  Shea  v.  Nilima  (C.  C.  A.),  133  Fed.  209  (delay  of 
two  years  in  suing  to  recover  interest  in  mining  claim,  no  laches 
when  defendants  have  not  been  prejudiced);  Haney  v,  Legg,  129 
Ala.  619,  87  Am.  St.  Eep.  81,  30  South.  34;  Pratt  Land  &  Imp.  Co. 
V.  McClain,  135  Ala.  452,  93  Am.  St.  Eep.  35,  33  South.  185;  Duke  v. 
State,  56  Ark.  485,  20  S.  W.  600  (foreclosure  of  mortgage  made  in 
1837  allowed  in  1876,  when  no  prejudice);  Bryan  v.  Hobbs  (Ark.),  83 
S.  W.  340;  Hovey  v.  Bradbury,  112  Cal.  620,  44  Pac.  1077;  Ex-Mission 
Land  &  Water  Co.  v.  Flash,  97  Cal.  610,  32  Pac.  600;  Earl  v.  Van 
Natta,  29  Ind.  App.  532,  64  N.  E.  901;  Brake  v.  Payne,  137  Ind. 
479,  37  N.  E.  140;  Citizens'  Nat.  Bank  v.  Judy,  146  Ind.  322,  43 
N.  E.  259  (delay  of  eleven  months  in  asking  reformation  is  not  such 
laches  as  will  bar  relief  when  there  is  no  change  in  the  relative 
positions  of  the  parties);  Dunbar  v.  Green  (Kan.),  72  Pac.  243  ("the 
mere  extent  of  the  delay  is  one  item  to  be  considered.     Among  otheri 


41  INTRODUCTION.  S  21 

ing  definition  has  probably  been  more  often  relied  on  by 
recent  cases  than  any  other  proceeding  from  an  English 
judge:  "The  doctrine  of  laches  in  courts  of  equity  is 
not  an  arbitrary  or  technical  doctrine.  Where  it  would 
be  practically  unjust  to  give  a  remedy,  either  because 
the  party  has,  by  his  conduct,  done  that  which  might 
fairly  be  regarded  as  equivalent  to  a  waiver  of  it,  or 
where,  by  his  conduct  and  neglect,  he  has,  perhaps,  not 

are  any  change  of  conditions,  the  intervention  of  the  rights  of  third 
parties,  the  likelihood  of  other  interests  being  affected  hj  the  delay, 
the  presence  of  fraud  and  its  character,  the  diligence  required  to 
■discover  it,  and  so  on");  Spalding  v.  St.  Joseph's  Industrial  School, 
107  Ky.  382,  54  S.  W.  200  (delay  of  twenty-five  years  without  knowl- 
edge of  facts  not  laches  when  relative  positions  of  parties  not 
changed);  Cooke  v.  Barrett,  155  Mass.  413,  29  N.  E.  625  (delay  of 
four  months  after  distribution  is  fatal  to  objection  to  composition 
with  creditors,  because  of  change  of  position  of  parties) ;  Eipley  v. 
Seligman,  88  Mich.  177,  50  N.  W.  143;  Washington  Lodge  v.  Freling- 
huysen  (Mich.),  101  N.  W,  569  (delay  of  twelve  years,  during  which 
rights  had  accrued);  Sherwood  v.  Baker,  105  Mo.  472,  24  Am.  St.  Rep. 
399,  16  S.  W.  938;  Dunklin  County  v.  Choteau,  120  Mo.  577,  25  S.  W. 
553;  Lindell  Real  Estate  Co.  v.  Lindell,  142  Mo.  61,  43  S.  W.  36S 
(delay  of  eleven  years  not  laches  when  no  change  in  condition);  Wolf 
V.  Great  Falls  etc.  Co.,  15  Mont.  49,  38  Pac.  115;  Mantle  v.  Speculator 
Min.  Co.,  27  Mont.  473,  71  Pac.  665;  Fitzgerald  v.  Fitzgerald  & 
Mallory  Const.  Co.,  44  Neb.  463,  €2  N.  W.  899;  Daggers  v.  Van  Dyck, 
37  N.  J.  Eq.  130;  Tynan  v.  Warren,  53  N.  J.  Eq.  313,  31  Atl.  596; 
LunJy  V.  Seymour,  55  N.  J.  Eq.  1,  35  Atl.  893  (mere  delay  of  four- 
teen years  is  not  laches);  Law  v.  Smith  (N.  J.  Eq.),  59  Atl.  327 
(four  years;  no  change  in  position);  Spencer  v.  Seaboard  Air  Line 
Ey.  Co.  (N.  C),  49  S.  E.  96;  Wilson  v.  Wilson,  69  Pac.  923,  41  Or. 
459;  Gorham  v.  Sayles,  23  R.  I.  449,  50  Atl.  848;  Parker  v.  Bethel 
Hotel  Co.,  96  Tenn.  252,  31  L.  R.  A.  706,  34  S.  W.  209;  Renshaw  v. 
First  Nat.  Bank  (Tenn.  Ch.  App.),  63  S.  W.  194;  Robinson  v.  Kamp- 
mann,  5  Tex.  Civ.  App,  605,  24  S.  W.  529;  Hamilton  v.  Dooly,  15 
Utah,  280,  49  Pac.  769;  Tidball's  Exrs.  v.  Shenandoah  Nat.  Bank 
(W.  Va.),  42  S.  E.  867  (good  statement);  Ludington  v.  Patton,  111 
Wis.  208,  86  N.  W.  571;  Northern  Trust  Co.  v.  Snyder,  113  Wis. 
516,  90  Am.  St.  Rep.  867,  89  N.  W.  460  (mere  delay  not  sufficient  to 
bar  taxpayers'  suit  against  municipal  corporation);  Farr  v,  Hauen- 
stein  (N.  J.  Eq.),  61  Atl.  147j  Wollaston  v.  Tribe,  L.  E.  9  Eq.  Cas. 
44,  per  Romily,  M.  E. 


i  21  EQUITABLE    REMEDIES.  42 

waiving  that  remedy,  yet  put  the  other  party  in  a  situa- 
tion in  which  it  would  not  be  reasonable  to  place  him 
if  the  remedy  were  afterward  to  be  asserted  in  either 
of  these  cases,  lapse  of  time  is  most  material."^^  The 
language  of  an  able  western  court  in  a  very  recent  case 
describes  the  general  doctrine  with  notable  accuracy: 
"Several  conditions  may  combine  to  render  a  claim  or 
demand  stale  in  equity.  If  by  the  laches  and  delay  of 
the  complainant  it  has  become  doubtful  whether  ad- 
verse parties  can  command  the  evidence  necessary  to  a 
fair  presentation  of  the  case  on  their  part,  or  if  it  ap- 
pears that  they  have  been  deprived  of  any  such  advan- 
tages they  might  have  had  if  the  claim  had  been  season- 
ably insisted  upon,  or  before  it  became  antiquated,  or  if 
they  be  subjected  to  any  hardship  that  might  have  been 
avoided  by  reasonably  prompt  proceedings,  a  court  of 
equity  will  not  interfere  to  give  relief,  but  will  remain  pas- 
sive ;  and  this  although  the  full  time  may  not  have  elapsed 
which  would  be  required  to  bar  a  remedy  at  law.  If, 
however,  upon  the  other  hand,  it  clearly  appears  that 
lapse  of  time  has  not  in  fact  changed  the  conditions  and 
relative  positions  of  the  parties,  and  that  they  are  not 
materially  impaired,  and  there  are  peculiar  circum- 
stances entitled  to  consideration  as  excusing  the  delay, 
the  court  will  not  deny  the  appropriate  relief,  although 
a  strict  and  unqualified  application  of  the  rule  of  limi- 
tations would  seem  to  require  it.     Every  case  is  gov- 

61  Lindsay  Petroleum  Co.  v.  Hurd,  L.  R.  5  P.  C.  221,  per  Lord 
Selborne,  who  continues:  "But  in  every  case,  if  an  ar^ment  against 
relief  which  otherwise  would  be  just  is  founded  upon  mere  delay, 
that  delay,  of  course,  not  amounting  to  a  bar  by  any  statute  of 
limitations,  the  validity  of  that  defense  must  be  tried  upon  princi- 
ples substantially  equitable.  Two  circumstances,  always  important 
in  such  cases,  are  the  length  of  the  delay  and  the  nature  of  the  acts 
done  during  the  interval,  which  might  affect  either  party  and  cause 
a  balance  of  justice  or  injustice  in  taking  one  course  or  the  other." 
See  Ryason  v.  Dunten   (Ind.),  73  N.  E.  74. 


43  liNTKODUCTION.  8  22 

erned  chiefly  by  its  own  circumstances."^^  Dicta  to 
substantially  the  same  effect  from  nearly  all  the  Ameri- 
can courts  may  be  readily  accumulated,  all  tending  to 
show  that  the  doctrine  of  laches  is,  for  the  most  part, 
merely  an  application  of  the  broader  maxims  of  equity, 
"He  who  seeks  equity  must  do  equity,"  and  "He  who 
comes  into  equity  must  come  with  clean  hands."  It 
exacts  of  the  plaintiff  no  more  than  fair  dealing  with 
his  adversary.  It  is  in  no  way  dependent  on  those  gen- 
eral considerations  of  public  utility,  and  the  "repose  of 
society,"  which'  are,  in  legal  theory,  the  legislative  mo- 
tive for  statutes  of  limitations. 

§  22.  Illustrations:  Improvements  or  Sales  by  Defendant 
— Loss  or  Obscuring  of  Defendant's  Evidence. — "A  delay  of 
a  party  holding  an  equitable  right  to  property  which 
has  permitted  another,  who  holds  the  legal  title,  to  ex- 
pend large  sums  of  money  in  the  improvement  of  the 
property,  and  thereby  greatly  enhance  it  in  value, 
which  he  would  not  have  done  had  the  right  been  prop- 
erly asserted,  has  usually  been  considered  such  laches 
as  will  preclude  the  party  guilty  of  it  from  relief.  If 
the  party  holding  the  equitable  right  would  avail  him- 
self of  it,  he  must  assert  it  in  a  reasonable  time. 
Equity  will  not  permit  him  to  stand  by  and  permit  the 
other  party,  who  holds  the  legal  title,  to  improve  and 
develop  the  property  until  it  has  become  valuable,  or 
greatly  increased  in  value,  and  then  assert  his  right.  "^' 

62  Wilson  V.  Wilson,  41  Or.  459,  69  Pac.  923,  per  Woolverton,  J. 

63  Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St.  Eep.  17,  17  S.  W. 
589.  See,  also,  Gildersleeve  v.  New  Mexico  Min.  Co.,  161  U.  S.  573, 
582,  16  Sup.  Ct.  663,  40  L.  ed.  812  (delay  of  thirty  years);  O'Brien 
V.  Wheelock,  184  U.  S.  450,  22  Sup.  Ct.  354,  46  L.  ed.  636  (delay  of 
nine  years);  Halstead  v.  Grinnan,  152  U.  S.  412,  14  Sup.  Ct.  641,  38 
L.  ed.  495;  Sclilawig  v.  Purslow,  59  Fed.  848,  8  C.  C.  A.  315,  19  U.  S. 
A  pp.  501  (delay  of  ten  years);  Wetzel  v.  Minnesota  Ry.  Transfer  Co., 
65  Fed.  23,  12  C.  C.  A.  490,  27  U.  S.  App.  594  (delay  of  forty-two 


5  22  EQUITABLE    REMEDIES.  44 

Again,  when  tlie  property  in  dispute  has  been  sold  by 
the  party  at  fault  to  innocent  parties,  a  delay  by  the 
complainant  may  amount  to  laches.^^ 

Where  important  evidence  in  behalf  of  the  defendant 
has  been  lost  during  the  delay  of  the  complainant,  he 
will  generally  be  barred  from  relief.  The  loss  may 
result  from  the  death  or  incapacity  of  some  of  the  wit- 
nesses. Again,  the  delay  may  be  so  long  that  under 
the  circumstances  many  of  the  important  facts  have 
become  obscured.  To  allow  a  complainant  relief  in 
such  cases  would  frequently  risk  a  great  hardship  to 
innocent  parties.  Consequently,  the  courts  decline  to 
interfere.^^ 

years);  Dickman  v.  Dryden,  90  Minn.  244,  95  N.  W.  1120;  Loomis  v. 
Eosenthal,  34  Or.  585,  57  Pac.  55;  Chezum  v.  McBride,  21  Wash.  558, 
58  Pac.  1067;  Melms  v.  Pabst  Brewing  Co.,  93  Wis.  153,  57  Am.  St. 
Eep.   899,  66   N.   W.   518. 

64  Wetzel  V.  Minnesota  By.  Transfer  Co.,  65  Fed,  23,  12  C.  C.  A. 
490,  27  U.  S.  App.  594;  Nantahala  Marble  &  Talc  Co.  v.  Thomas,  76 
Fed.  59  (delay  of  twelve  years);  Helfenstein  v.  Eeed,  62  Fed.  214, 
10  C.  C.  A.  327,  27  U.  S.  App.  103  (delay  of  twenty-five  years);  St. 
Paul,  S.  &  T.  F.  R.  Co.  v.  Sage,  49  Fed.  315,  1  C.  C.  A.  256,  4  U.  S. 
App.  160  (reversing  32  Fed.  821,  44  Fed.  817) ;  Bateman  v.  Butler,  19 
Colo.  547,  36  Pac.  548;  Converse  v.  Brown,  200  111.  166,  65  N.  E.  644; 
Dunbar  v.  Green,  66  Kan.  557,  72  Pac.  243  (delay  of  twenty-one 
years);  Snow  v.  Mfg.  Co.,  158  Mass.  325,  33  N.  E.  588  (delay  of 
one  year  in  suing  to  set  aside  sale  of  corporate  property  to  directors, 
during  which  time  property  had  been  sold  to  others) ;  Berkey  v.  St. 
Paul  Nat.  Bank,  54  Minn.  448,  56  N.  W.  53  (plaintiff  barred  by  delay 
of  seven  years  although  purchaser  had  constructive-  notice) ;  North 
V.  Platte  County,  29  Neb.  447,  26  Am.  St.  Rep.  395,  45  N.  W.  692 
(delay  of  nine  years);  Commonwealth  v.  Reading  Traction  Co.,  204 
Pa.  151,  53  Atl.  755. 

65  In  the  following  cases,  the  death  of  witnesses,  coupled  with  de- 
lay by  complainant,  was  held  sufiicient  to  bar  relief:  Foster  v.  Mans- 
field etc.  Co.,  146  U.  S.  88,  13  Sup.  Ct.  28,  36  L.  ed.  899;  Hinfhman 
V.  Kelley,  54  Fed.  63,  4  C.  C.  A.  189,  7  U.  S.  App.  481;  Eiffert  v. 
Craps,  58  Fed.  470,  7  C.  C.  A.  319,  8  U.  S.  App.  436  (delay  of  forty 
yea.rs) ;  Socrates  Quicksilver  Mines  v.  Carr  Realty  Co.,  64  C.  C.  A. 
539,   130   Fed.   293    (delay   of   twenty-eight   years);   Rives   v.   Morris, 


45  INTRODUCTION.  {  25 

§  23.  Defense  of  Laches  Favored  by  United  States  Courts — 
Increase  in  Value  of  the  Property  Fatal  to  Plaintiff's  Claim. — 
This  fair  degree  of  unanimity  as  to  the  theoretical  basis 

108  Ala.  527,  18  South.  743;  Street  v.  Henry,  124  Ala.  153,  27  South. 
411  (delay  of  twenty-six  years);  Evan  v.  Woodin  (Idaho),  75  Pac. 
261  (delay  of  five  years);  Thomas  v.  Van  Meter,  164  111.  304,  45  N.  E. 
405  (delay  of  sixteen  years);  New  York  Life  Ins.  Co.  v.  Weaver's 
Admr.,  24  Ky.  Law  Eep.  1086,  70  S.  W.  628;  Eipple  y.  Kuehne  (Md.), 
60  Atl.  464  (delay  of  'eight  years  after  fraud,  and  almost  a  year 
after  death  of  party  charged  with  fraud,  and  of  attorney  who  Irans- 
.ncted  the  business);  Hadaway  v.  Hynson,  89  Md.  305,  43  Atl.  806; 
Preston  v.  Horwitz,  85  Md.  164,  36  Atl.  710;  Eamcs  v.  Manley,  121 
Mich.  300,  80  N.  W.  15;  Baker  v.  Cunningham,  162  Mo.  134,  85  Am. 
St.  Eep.  490,  62  S.  W.  445;  McKechnie  v.  McKechnie,  39  N.  Y.  Supp. 
402,  3  App.  Div.  91;  Taylor  v.  Slater,  21  E.  I.  104,  41  Atl.  1001; 
Garland's  Admr.  v.  Garland's  Admr.  (Va.),  24  S.  E.  505;  Snipes  v. 
Kelleher,  31  Wash.  386,  72  Pac.  67.  See,  however,  Ball  v.  Ball,  20 
E.  L  520,  40  Atl.  234;  Young  v.  Young,  51  N.  J.  Eq.  491,  27  Atl.  627 
(death  of  witnesses  not  sufficient  when  it  causes  no  serious  disad- 
vantage); Holsberry  v.  Harris  (W.  Va.),  49  S.  E.  404. 

In  the  following  cases  witnesses  became  incapacitated  during  the 
time  of  complainant's  delay,  and  relief  was  denied:  Whitney  v.  Fox, 
166  U.  S.  637,  17  Sup.  Ct.  713,  41  L.  ed.  1145  (defendant  became 
mentally  impaired) ;  Dispeau  v.  First  Nat,  Bank,  24  E.  I.  508,  53 
Atl.  868. 

Illustrations  of  refusal  of  relief  on  account  of  the  evidence  be- 
coming obscure  are  found  in  the  following  cases:  In  Doane  v.  Pres- 
ton, 183  Mass.  569,  67  N.  E.  867,  a  bill  founded  upon  neglect  of  cor- 
poration officers  to  act  upon  an  offer  to  convey  the  right  to  manu- 
facture patented  machines  was  filed  after  a  delay  of  six  years.  Re- 
lief was  refused  because  it  would  rquire  an  investigation  of  an  al- 
leged offer  made  six  years  before  suit,  as  well  as  conduct  and  mo- 
tives of  parties,  and  of  the  state  and  condition  at  that  time  of  a 
branch  of  manufacture  in  which  new  inventions  play  an  important 
part.  In  Lutjen  v.  Lutjen  (N.  J.  Eq.),  53  Atl.  625,  the  court  says: 
"Lapse  of  time  alone  is  deemed  by  the  authorities  to  be  a  suffi- 
cient ground  of  estoppel  in  cases  like  the  present,  when  the  court 
cannot  feel  confident  of  its  ability  to  ascertain  the  truth  now,  as 
well  as  it  could  when  the  subject  for  investigation  was  recent,  and 
before  the  memories  of  those  who  had  knowledge  of  the  material 
facts  have  become  faded  and  weakened  by  time.  To  constitute  es- 
toppel of  this  description,  it  is  not  essential  that  any  actual  loss  of 
testimony,  through  death  or  otherwise,  or  means  of  proof,  or  changed 


{  23  EQUITABLE    REMEDIES.  46 

of  the  doctrine  is  shaken  by  a  series  of  decisions  by  the 
supreme  court  of  the  United  States,  followed,  of  course, 
by  recent  cases  in  the  lower  federal  and  the  territorial 
courts,  and  to  a  limited  extent  by  state  courts.  The 
decisive  feature  in  these  cases  has  been  that  the  prop- 
erty which  is  the  subject-matter  of  the  litigation  has 
greatly  risen  in  value  since  the  complainant's  cause  of 
action  accrued.  The  courts  profess  to  find  in  the  plain- 
tiff's delay  under  such  circumstances  an  element  of  in- 
jury to  the  defendant,  consisting,  apparently,  in  the 
latter's  uncertainty  whether  suit  will  or  will  not  be 
brought ;  and  base  the  doctrine  of  laches  not  on  the  un- 
fairness of  the  plaintiff's  conduct,  but  rather  on  motives 
of  public  policy  against  the  disturbance  of  possessory 
titles,  however  acquired.  The  "growing  favor"  with 
which  the  defense  is  recognized  by  the  federal  courts 
has  not  escaped  judicial  comment.^* 

relations,  to  the  prejudice  of  the  other  party,  should  have  occurred. 
But  the  estoppel  arises  because  the  court  cannot,  after  so  great  a 
lapse  of  time,  rely  upon  the  memory  of  witnesses  to  reproduce  the 
details  that  entered  into  the  final  excution  of  the  instrument  of  set- 
tlement. ' ' 

In  general,  see  the  following  cases,  where  the  questions  were  con- 
eidered:  Abraham  v.  Ordway,  158  U.  S.  416,  15  Sup.  Ct.  894,  39  L. 
ed.  1036;  Lemoine  v.  Dunklin  County,  51  Fed.  487,  2  C.  C.  A.  343, 
10  U.  S.  App.  227  (affirming  46  Fed.  219);  Wood  v.  Perkins,  64  Fed. 
817;  Jones  v.  Perkins,  76  Fed.  82;  Anderson  v.  Northrop,  30  Fla. 
612,  12  South.  318;  Patterson  v.  Hewitt  (N.  Mex.),  66  Pac.  552,  55 
L.  R.  A.  658;  Lockwood  v.  White,  65  Vt.  466,  26  Atl.  639;  Nelson 
V.  Triplett,  99  Va.  421,  39  S.  E.  150;  Jameson  v.  Bixey,  94  Va.  342, 
64  Am.  St.  Rep.  726,  26  S,  E.  861;  Pethtel  v.  McCullough,  49  W.  Va, 
520,  39  S.  E.  199;  Seymour  v.  Alkire,  47  W.  Va.  302,  34  S.  E.  953. 

66  As  in  Lasher  v.  McCreery,  66  Fed.  834,  840  (1895),  by  Jackson, 
D.  J.,  speaking  from  the  vantage  ground  of  over  thirty  years'  ex- 
perience as  federal  judge.  "This  is  an  equitable  defense,  and  is 
often  resorted  to  when  the  party  who  seta  it  up  has  no  defense  in 
law,  and  for  this  reason  courts  should  be  very  cautious  in  applying 
this  doctrine  to  defeat  a  rightful  owner  of  the  land  who,  from 
neglect,  which  may  be  the  result  of  the  want  of  proper  information. 


47  INTKODUCTION.  §  23 

This  view  of  the  federal  courts  is  well  presented  in 
the  following  excerpts:  "In  cases  of  actual  fraud,  or 
of  want  of  knowledge  of  the  facts,  the  law  is  very  toler- 
ant of  delay;  but  where  the  circumstances  of  the  case 
negative  this  idea,  and  the  transaction  is  sought  to  be 
impeached  only  by  reason  of  the  confidential  relations 
between  the  parties,  and  the  cestuis  que  trustoit  have 
ample  notice  of  the  facts,  they  ought  not  to  wait  and 
make  their  action  in  setting  aside  the  sale  dependent 
upon  the  question  whether  it  is  likely  to  prove  a  profit- 
able speculation.  As  the  question  whether  the  sale 
should  be  vacated  or  not  depends  upon  the  facts  as  they 
existed  at  the  time  of  the  sale,  so,  in  taking  proceedings 
to  avoid  such  sale,  the  plaintiff  should  act  upon  his 
information  as  to  such  facts,  and  not  delay  for  the 
purpose  of  ascertaining  whether  he  is  likely  to  be  bene- 
fited by  a  rise  in  the  property,  since  that  would  practi- 
cally amount  to  throwing  upon  the  purchaser  any  losses 
he  might  sustain  by  a  fall,  and  denying  him  the  benefit 
of  a  possible  rise."®'     "No  doctrine  is  so  wholesome, 

refrains  from  an  assertion  of  his  rights  until  the  presumption  of 
abandonment  arises  from  his  course  of  conduct.  I  am  aware  of  the 
tendency  in  the  courts  of  this  day  to  recognize  the  defense  with 
growing  favor  as  both  meritorious  and  valid." 

67  Hoyt  V.  Latham,  143  U.  S.  553,  12  Sup.  Ct.  568,  36  L.  ed.  259. 
See  in  general,  as  to  change  in  value  proving  fatal  to  complainant  'a 
case.  Oil  Co.  v.  Marbury,  91  U.  S.  592,  23  L.  ed.  331;  Galliher  v. 
Cadwell,  145  U.  S.  368,  12  Sup.  Ct.  873,  36  L.  ed.  738  (affirming  3 
Wash.  T.  501,  18  Pac.  68);  Mclntire  v.  Pryor,  173  U.  S.  38,  19  Sup. 
Ct.  352,  43  L.  ed.  606  (affirming  10  App.  D.  C.  432);  Felix  v.  Patrick, 
145  U.  S.  317,  12  Slip.  Ct.  862,  36  L.  ed.  719  (affirming  36  Fed.  457); 
Johnston  v.  Standard  Min.  Co.,  148  U.  S.  360,  13  Sup.  Ct.  585,  37  L. 
ed.  480;  Patterson  v.  Hewitt,  195  U.  S.  309,  25  Sup.  Ct.  35,  49  L.  e<l. 

;  Sagadahoc  Land  Co.  v.  Ewing,  65  Fed.  702,  13  C.  C.  A.  83,  31 

U.  S.  App.  102;  Continental  Nat.  Bank  v.  Heilman,  81  Fed.  36  (af- 
firmed 86  Fed.  514,  30  C.  C.  A.  232);  Old  Colony  Trust  Co.  v.  Dubuque 
L.  &  T.  Co.,  89  Fed.  794;  Kiuue  v.  Webb,  49  Fed.  512;  Lemoine  v. 
DunkUn  County,  51  Fed.  487,  2  C.  C.  A.  343,  10  U.  S.  App.  227   (ai- 


i  23  EQUITABLE    EEMEDIES.  48 

when  wisely  administered,  as  tliat  of  laches.  It  pre- 
vents the  resurrection  of  stale  titles,  and  forbids  the 
spying  out  from  the  records  of  ancient  and  abandoned 
rights.  It  requires  of  every  owner  that  he  take  care  of 
his  property,  and  of  every  claimant  that  he  make  known 
his  claims.  It  gives  to  the  actual  and  longer  possessor 
security,  and  induces  and  justifies  him  in  all  efforts  to 
improve  and  make  valuable  the  property  he  holds.  It 
is  a  doctrine  received  with  favor,  because  its  proper 
application  works  out  justice  and  equity,  and  often 
bars  the  holder  of  a  mere  technical  right,  which  he  has 
abandoned  for  years,  from  enforcing  it  when  its  en- 
forcement will  work  large  injury  to  many."*'^  "The 
equitable  rule  that  one  who  is  negligent  shall  not  have 
relief,  and  the  barring  of  proceedings  after  the  lapse  of 
stated  periods  of  time  by  statutory  enactments,  are 
alike  based  upon  public  policy,  as  well  as  upon  consid- 
erations affecting  only  individual  rights.  It  is  to  the 
public  interest  that  stability  in  the  title  to  property 
should  exist,  and  that  all  uncertainties  and  disputes 
as  to  the  ownership  of  land  should  be  speedily  put 

at    rest Hence,    there    lies    at    the    foundation 

of  the  principle  that  the  lapse  of  time  will  become 
a  defense  to  the  title  of  the  one  in  possession  of  prop- 
firming  46  Fed.  219) ;  Church  of  Jesus  Christ  v.  Reorganized  Church 
etc.,  70  Fed.  179,  17  C.  C.  A.  387,  36  U.  S.  App.  110;  Curtis  v.  Lakin, 
94  Fed.  251,  36  C.  C.  A.  222  (delay  of  two  years  only);  Meyer  v. 
Johnson,  60  Ark.  50,  28  S.  W.  797;  Bateman  v.  Eeitler,  19  Colo.  547, 
36  Pac.  548;  Graff  v.  Portland  Town  &  Mineral  Co.,  12  Colo.  App. 
106,  54  Pac.  854;  Burke  v.  Backus,  51  Minn.  174,  53  N.  W.  458;  Pat- 
terson V.  Hewitt  (N.  Mex.),  66  Pac.  552,  55  L.  E.  A.  658  (eight  years' 
delay  in  enforcing  resulting  trust) ;  afiirnied,  195  U.  S.  309,  25  Sup. 
Ct.  35;  Loomis  v.  Rosenthal,  34  Or.  585,  57  Pac.  55;  Bryant  v.  Groves, 
42  W.  Va  10,  24  S.  E.  605;  Melms  v.  Pabst  Brewing  Co.,  93  Wis. 
153,  57  Am.  St.  Eep.  899,  €6  N.  W.  518. 

68  Naddo  V.  Bardon,  51  Fed.  493,  2  C.  C.  A.  335,  4  U.  S.  App.  642, 
per  Brewer,  J. 


49  INTRODUCTION.  (  23 

erty  not  only  consideration  for  his  personal  rights  and 
equities,  but  also  a  recognition  of  the  higher  public  in- 
terests which  can  only  be  subserved  by  putting  at  rest, 
as  speedily  as  possible,  all  doubts  and  uncertainties 
touching  the  title  of  realty,  to  which  end  it  is  the  duty 
of  courts  to  discourage  delays  in  the  assertion  of  con- 
flicting claims  thereto."®' 

69  St.  Paul  etc.  R.  Co.  v.  Sage,  49  Fed.  315,  326,  1  C.  C.  A.  256,  4 
U.  S.  App.  160,  per  Shiras,  J.,  reversing  32  Fed.  821,  44  Fed.  817. 
See,  also,  Halstead  v.  Grinnan,  152  U.  S.  412,  14  Sup.  Ct.  641,  38  L. 
ed.  495. 

It  appears  to  the  writer  far  from  easy  to  adjust  the  principle  an- 
nounced in  these  decisions,  if  worked  out  to  its  logical  conclusion, 
with  those  ordinary  ideas  of  fair  dealing  whch  usually  guide  the 
chancellor's  discretion.  It  practically  amounts  to  saying,  that  if 
the  defendant's  wrong  has  turned  out  to  be  an  enormously  profitable 
one  to  him,  that  affords  a  reason,  either  alone  or  in  connection  with 
other  reasons,  why  he  should  be  protected  in  the  enjoyment  of  his 
profit  by  a  court  of  equity;  and  the  greater  the  profit,  the  stronger 
the  protection.  The  fact  that  the  plaintiff,  in  the  exercise  of  ordin- 
ary business  prudence,  has  delayed  until  it  has  become  apparent  that 
his  success  in  the  litigation  will  not  be  a  fruitless  victory  is,  in  this 
view,  conduct  more  inequitable  than  any  of  which  the  defendant 
can  possibly  have  been  guilty,  and  excuses  the  court  from  investiga- 
tion of  the  defendant's  wrong.  The  delay  may  be  far  less  than  that 
allowed  by  the  most  stringent  statute  of  limitations;  and  the  cir- 
cumstance which  most  strongly  operates  upon  the  conscience  of  the 
court — viz.,  the  rise  in  value  of  the  property — is  a  purely  accidental 
one,  unconnected  with  any  fault  of  the  plaintiff  or  merit  of  the  de- 
fendant. The  motives  of  public  policy  and  the  repose  of  society  by 
which  this  favoritism  shown  to  the  defense  of  laches  has  been  justi- 
fied seem  rather  appropriate  for  the  consideration  of  a  legislature 
than  of  a  court,  and  hardly  warrant  the  court's  overruling  a  legisla- 
tive policy  already  expressed  in  statutes  of  limitation. 

Laches  from  Long  Delay  Alone. — For  the  sake  of  completeness,  it 
should  be  noticed  that  in  a  considerable  number  of  cases  no  element 
of  laches  save  the  long  delay  alone  is  mentioned  by  the  court;  but 
it  is  not  impossible  that  some  of  the  additional  elements  heretofore 
described  may  have  existed  to  influence  these  decisions.  See,  for 
examples,  De  Martin  v.  Phelan,  51  Fed.  8^,  2  C.  C.  A.  523,  7  U.  S. 
App.  233,  affirming  47  Fed.  761  (action  to  declare  deed  a  mortgage) ; 
Reed  v.  Dingess,  56  Fed.  171  (bill  to  redeem);  Streight  v.  Junk,  59 
Equitable  Remedies,  Vol.  I — 4 


§  24  "EQUITABLE    KEMEDIES.  50 

§  24.  Limitation  of  the  General  Doctrine  in  Case  of  In- 
junction in  Support  of  Strict  Legal  Right. — An  important 
limitation  upon  the  general  rule  as  to  the  effect  of  de- 
lay has  been  established  by  a  considerable  preponder- 
ance of  authority.  "Where  an  injunction  is  asked  in 
support  of  a  strict  legal  right,  the  party  is  entitled  to 
it  if  his  legal  right  is  established;  mere  delay  and  ac- 
quiescence will  not,  therefore,  defeat  the  remedy  unless 
it  has  continued  so  long  as  to  defeat  the  right  itself."^*^ 
This  rule  has  had  frequent  application  where  injunc- 
tion has  been  sought  against  the  pollution^^  or  diver- 
sion^- of  water;  or  against  the  infringement  of  a  pat- 
enf^  or  a  trade-mark."^* 

Fed.  321,  8  C.  C.  A.  137,  16  U.  S.  App.  608  (delay  of  two  years  by 
stockholder  in  suing  to  enforce  the  rights  of  a  corporation  against  a 
director);  Kemp  v.  Nickerson,  66  Fed.  682;  Halsey  v.  Cheney,  68 
Fed.  763,  15  C.  C.  A.  656,  34  U.  S.  App.  50;  Guarantee  Trust  &  S. 
D.  Co.  V.  Delta  &  Pine  Land  Co.,  104  Fed.  5,  43  C.  C.  A.  396  (delay 
of  twenty-five  years,  unexcused);  Jones  v.  Perkins,  76  Fed.  82; 
Tetrault  v.  Fournier  (Mass.),  72  N.  E.  350;  Fennyery  v.  Eansom,  170 
Mass.  303,  49  N.  E.  620;  Wiggin  v.  Swamscot  Maeh.  Co.,  68  N.  H,  14, 
38  Atl.  727;  Shields  v.  Tarleton,  48  W.  Va.  343,  37  S.  E.  589. 

70  2  Pom.  Eq.  Jur.,  §  817.  See,  also,  Galway  v.  Metropolitan  Elev. 
R.  Co.,  128  N.  Y.  132,  28  N.  E.  479,  13  L.  E.  A.  788,  citing  Pom.  Eq. 
,Tur.,  §  817,  and  many  cases  (nuisance);  Higgins  Oil  &  Fuel  Co.  v. 
Snow,  113  Fed.  433,  51  C.  C.  A.  267,  and  cases  cited  (in  Texas,  laches 
not  imputable  to  one  whose  title  is  capable  of  being  established  at 
law). 

71  Goldsmid  v.  Tunbridge  Wells  Imp.  Commrs.,  L.  R.  1  Eq.  161; 
State  of  Missouri  v.  State  of  Illinois,  180  U.  S.  208,  21  Sup.  Ct. 
331,  45  L.  ed.  497;  Chapman  v.  Rochester,  110  N.  Y.  273,  6  Am.  St. 
Rep.  366,  18  N.  E.  88,  1  L.  R.  A.  296. 

72  Lonsdale  Co.  v.  City  of  Woonsocket,  21  R.  L  493,  44  Atl.  929 
(sixteen  years'  delay);  Rigney  v.  Tacoma  L.  &  W.  Co.,  9  Wash.  576, 
38  Pac.  147,  2G  L.  R.  A.  425  (relying  on  Pom.  Eq.  Jur.,  §  817). 

73  Taylor  v.  Sawyer  Spindle  Co.,  75  Fed.  301,  304,  22  C.  C.  A.  203, 
206,  and  cases  cited;  Ide  v.  Thorlicht  etc.  Carpet  Co.,  115  Fed.  137, 
148,  and  cases  cited. 

74  Fullwood  V.  Fullwood,  L.  R.  9  Ch.  Div.  176;  Menendez  v.  Holt, 
128  V.  S.  514,  9  Sup.  Ct.  143,  32  L.  ed.  526.  Compare  Grand  Lodge 
A.  O.  U.  W.  V.  Graham,    96  Iowa,  592,  65  N.  W.  837,  31  L.  R.  A.  133. 


51  INTRODUCTION.  S§  25,  28 

§  25.  Whether  Laches  is  Imputable  to  the  Government. — 
Laches  is  not  imputable  to  the  government  of  the 
United  States  when  it  has  a  direct  pecuniary  interest 
in  the  subject  of  the  litigation.'''  This  rule  is  based 
on  public  policy.  Where,  however,  "the  government 
is  a  mere  formal  complainant  in  a  suit,  not  for  the  pur- 
pose of  asserting  any  public  right,  or  protecting  any 
public  interest,  title,  or  property,  but  merely  to  form 
a  conduit  through  which  one  private  person  can  con- 
duct litigation  against  another  private  person,"  laches 
may  be  imputed.'^®  It  has  been  held  that  it  is  imputa- 
ble to  a  state,^^  and  also  to  a  municipal  corporation, 
but  the  doctrine  should  be  applied  cautiously."^  ^ 

§  26.  Excuses  for  laches — (1)  Party's  Ignorance  of  His 
Rights. — "A  person  cannot  be  deprived  of  his  remedy  in 
equity  on  the  ground  of  laches,  unless  it  appears  that 
he  had  knowledge  of  his  rights.  As  one  cannot  ac- 
quiesce in  the  performance  of  an  act  of  which  he  is  ig- 
norant, so  one  cannot  be  said  to  neglect  the  prosecution 

75  San  Pedro  &  Canon  del  Agua  Co.  v.  United  States,  146  U.  S. 
120,  13  Sup.  Ct.  94,  36  L.  ed.  912;  United  States  v.  State  of  Michigan, 
190  U.  S.  379,  23  Sup.  Ct.  742,  47  L.  ed.  1103;  Southern  Pac.  E.  Co. 
V.  Stanley,  49  Fed.  263;  United  States  v,  Dastervignes,  118  Fed.  199; 
United  States  v.  Willamette  Val.  &  C.  M.  Wagon  Boad  Co.,  54  Fed. 
807.  In  this  last  case  the  court  said:  "It  is  held  that  laches  is  not 
imputable  to  the  government  upon  grounds  of  public  policy.  The 
common-law  rule  that  no  lapse  of  time  can  bar  the  right  of  the 
king  is  not  only  recognized  in  the  United  States,  but  is  deemed  to  be 
applicable  with  added  reason,  from  the  fact  that  here  property  is 
held,  not  as  by  a  monarch  for  personal  or  private  purposes,  but  in 
trust  for  the  common  welfare;  and,  where  the  agencies  of  the  people 
are  so  numerous  and  scattered,  the  utmost  vigilance  would  not  save 
the  public  from  loss." 

76  United  States  v.  Beebe,  127  U,  S.  338,  8  Sup.  Ct.  1083,  32  L.  ed. 
121;  United  States  v.  Chicago,  M.  &  St.  P.  E.  Co.,  54  C.  C.  A.  545, 
116  Fed.  969. 

77  Attorney-General  v.  Central  E.  Co.  (N.  J.  Eq.),  59  Atl.  348. 

78  DunJ-Jis  County  v.  Chouteau,  120  Mo.  577,  25  S.  W.  553. 


i  26  EQUITABLE    EEMEDIES.  8t 

of  a  remedy  when  he  has  no  knowledge  that  his  rights 
have  been  invaded,  excepting,  always,  that  his  want  of 
knowledge  is  not  the  result  of  his  own  culpable  negli- 
gence. It  is  not  a  little  difficult  to  determine  what 
knowledge  is  necessary  to  place  the  party  in  the  posi- 
tion of  negligently  delaying  his  action."'^* 

79  Hall  V.  Otterson,  52  N.  J,  Eq.  522,  28  Ati.  907,  per  Green,  V.  C. 
See,  also,  Hodge  v.  Palms,  68  Fed.  61,  15  C.  C.  A.  220,  37  U.  S.  App. 
61;  Kansas  City  Southern  E.  Co.  v.  Stevenson,  135  Fed.  553;  Spalding 
V.  St.  Joseph's  Industrial  School,  107  Ky.  382,  54  S.  W.  200;  Whit- 
ridge  V.  Whitridge,  76  Md.  54,  24  Atl,  645  (delay  of  twelve  years); 
Moorman  v.  Arthur,  90  Va.  455,  18  S.  E.  869;  Jameson  v.  Eixey,  94 
Va.  342,  64  Am.  St.  Eep.  726,  26  S.  E.  861  (delay  of  twenty  years); 
Craufurd's  Admr.  v.  Smith's  Exr.,  93  Va.  623,  23  S.  E.  235,  25  S.  E, 
657. 

Where  there  ia  no  fraud  in  the  case,  plaintiff's  ignorance  may  be 
no  excuse  after  a  great  lapse  of  time.  "The  interests  of  public  or- 
der and  tranquility  demand  that  parties  shall  acquaint  themselves 
with  their  rights  within  a  reasonable  time,  and,  although  this  time 
may  be  extended  by  their  actual  ignorance,  or  want  of  means,  it  ia 
by  no  means  illimitable":  Wetzel  v.  Minn.  Ey.  Transfer  Co.,  169  U. 
S.  237,  18  Sup.  Ct.  307,  2  L.  ed.  730  (affirming  65  Fed.  23,  12  C.  C. 
A.  490).  The  delay  in  this  case  was  thirty  years.  Ignorance  is  not 
an  excuse  when  the  plaintiff  has  notice  of  facts  which  should  put 
him  on  inquiry:  Loomis  v.  Eosenthal,  34  Or.  585,  57  Pac.  55.  It  has 
been  held  that  one  who  knows  that  another  is  selling  an  article  in 
violation  of  contract  cannot  justify  delay  on  the  ground  that  he 
did  not  have  enough  evidence,  since  he  could  bring  suit  and  have 
a  discovery  of  details  by  means  of  interrogatories:  Fowler  v.  Park, 
48  Fed.  789. 

See,  also,  post,  at  note  109. 

Ignorance  of  Law — Though  a  party  may  be  fully  apprised  of  the 
facts  from  which  his  equitable  right  arises,  his  ignorance  of  that 
right  has  sometimes  been  held  to  excuse  a  long  delay  in  its  enforce- 
ment: See  Lasher  v.  McCreery,  66  Fed.  834,  where  the  law  was  gener- 
ally supposed  to  be  settled  adversely  to  the  plaintiff  during  the 
period  of  the  plaintiff's  inaction;  Dinwiddle  v.  Self,  145  111.  290,  33 
N.  E.  892,  where  delay  of  twenty  years  in  suing  to  reform  a  deed 
for  mistake  of  law  was  due  to  the  advice  of  a  reputable  attorney 
that  the  deed  correctly  expressed  the  grantor's  intention.  But  see 
Wetzel  V.  Minnesota  Ey.  Transfer  Co.,  65  Fed.  23,  12  C.  C.  A.  490, 
27  U.  S.  App.  594;  affirmed,  169  U.  S.  237,  241,  18  Sup.  Ct.  307,  42 
L.  ed.  730. 


53  INTRODUCTION.  §  27 

§  27.  Igfnorance  of  Fraud. — ''The  right  of  the  party 
defrauded  is  not  affected  by  the  lapse  of  time,  or  gener- 
ally speaking,  by  anything  done  or  omitted  to  be  done, 
so  long  as  he  remains,  without  any  fault  of  his  own, 
in  ignorance  of  the  fraud  that  has  been  committed."^** 
"\\  hat  is  culpable  negligence  on  the  part  of  the  de- 
frauded party  in  acquainting  himself  with  the  fraud 
is  incapable  of  exact  definition.  Such  negligence- is  not 
imputed  where  the  relation  between  the  parties  is  one 
of  trust  and  confidence  ;^^  and  a  considerable  degree 
of  inaction  is  excused  by  active  measures  taken  by  the 
fraudulent  party  for  the  concealment  of  the  fraud.^^ 
"The  defense  of  want  of  knowledge  on  the  part  of  one 
charged  with  laches  is  one  easily  made,  easy  to  prove 
by  his  own  oath,  and  hard  to  disprove;  and  hence  the 
tendency  of  courts  in  recent  years  has  been  to  hold  the 
plaintiff  to  a  rigid  compliance  with  the  law  which  de- 
mands, not  only  that  he  should  have  been  ignorant  of 
the  fraud,  but  that  he  should  have  used  reasonable  dili- 

80  Eolfe  V.  Gregory,  4  De  Gex,  J.  &  S.  576,  per  Lord  Westbiiry;  2 
Pom.  Eq.  Jur.,  §  917  and  note.  See,  also,  Alger  v.  Anderson,  78  Fed. 
729;  Wilson  v.  Augur,  176  111.  561,  52  N.  E.  289;  Butler  v.  Prentiss, 
]58  N.  Y.  49,  52  N.  E.  652  (reversing  36  N.  Y.  Supp.  301,  91  Hun, 
643);  Simpkins  v.  Taylor,  81  Hun,  467,  31  N.  Y.  Supp.  169. 

81  Bitzeman  v.  Bitzeman,  [1895]  2  Ch.  474  (no  duty  of  Inquiry); 
Eeavis  v.  Eeavis,  103  Fed.  813  (reliance  upon  a  relative) ;  Penn  v. 
Folger,  182  111.  76,  55  N.  E.  192  (reversing  77  111.  App.  365);  Stan- 
wood  V.  Wishard,  134  Fed.  959  (fraud  of  attorney;  client  a  nonresi- 
dent). 

82  "The  perpetrator  of  a  fraud  can  hardly  be  permitted  to  suc- 
cessfully plead  in  a  court  of  equity  that  he  so  completely  secured 
and  betrayed  the  confidence  of  his  victim  that  the  latter  believed 
his  false  statement  that  no  inquiry  or  examination  would  avail  him 
aught  so  long  that,  when  his  faith  faltered,  it  was  too  late  for  him 
to  recover":  Kelley  v.  Boettcher,  85  Fed.  55,  62,  29  C.  C.  A.  14,  56 
U.  S.  App.  363.  See,  also,  Salsbury  v.  Ware,  183  111.  505,  56  N.  E. 
149  (reversing  80  111.  App.  485).  Compare  Townsend  v.  "Vander- 
werker,  160  U.  S.  171,  16  Sup.  Ct.  258,  40  L.  ed.  383. 


§  27  EQUITABLE    EEMEDIES.  54 

gence  to  have  informed  himself  of  all  the  facts."^^ 
Knowledge  of  facts  which  would  put  a  person  of  ordi- 
nary prudence  and  diligence  on  inquiry  is,  in  the  eves  of 
the  law,  equivalent  to  a  knowledge  of  all  the  facts  which 
a  reasonably  diligent  inquiry  would  disclose.^^ 

83  Foster  v.  Mansfield  C.  &  L.  M.  R.  Co.,  146  TJ.  S.  88,  99,  13  Sup. 
Ct.  28,  36  L.  ed.  899,  affirming  36  Fed.  627;  Wetzel  v.  Minnesota  Ry. 
Tr.  Co.,  65  Fed.  23,  12  C.  C  A.  490,  27  U.  S.  App.  594,  affirmed,  169 
U.  S.  237,  18  Sup.  Ct.  309.  See,  also,  Felix  v.  Patrick,  145  U.  S.  317, 
'36  L.  ed.  719,  12  Sxip.  Ct.  862  (affirming  36  Fed.  457);  Eiffert  v. 
Craps,  58  Fed.  470,  7  C  C.  A.  319,  8  TJ.  S.  App.  436  (chargeable  when 
fraud  might  have  been  discovered  by  inspection  of  one  recorded 
deed);  Scheftel  v.  Hays,  58  Fed.  457,  7  C.  C.  A.  308,  19  U.  S.  App. 
220  (inquiry  of  the  chief  perpetrator  of  the  fraud  is  not  sufficient); 
Lant  V.  Manley,  71  Fed.  7,  19  (fraud  evidenced  by  a  public  record); 
McMonagle  v.  McGlinn,  85  Fed.  88;  Reynolds  &  Hamby  etc.  Co.  v. 
Martin,  116  Ga.  495,  42  S.  E.  796;  Fitch  v.  Miller,  200  111.  170,  65 
N.  E.  650;  Donaldson  v.  Jacobitz,  67  Kan.  244,  72  Pac.  846;  Cole  v. 
Boyd  (Neb.),  93  N.  W.  1003.  The  bill  must  show  with  particularity 
how  and  when  the  plaintiffs'  knowledge  was  obtained,  in  order  that 
the  court  may  determine  whether  reasonable  effort  was  made  by  him 
to  ascertain  the  facts:  Hardt  v.  Heidweyer,  152  U.  S.  547,  558,  14  Sup. 
Ct.  671,  38  L.  ed.  548  and  cases  cited;  Stearns  v.  Page,  1  Story,  204 
215,  217,  Fed.  Cas.  No.  13,339,  by  Story,  J.;  Stearns  v.  Page,  7  Hov.-. 
819,  829,  12  L.  ed.  928,  by  Grier,  J.;  Badger  v.  Badger,  2  Wall.  87, 
95,  17  L.  ed.  836;  Wood  v.  Carpenter,  101  U.  S.  135,  140,  25  L.  ed. 
?07;  Bangs  v.  Loveridge,  60  Fed.  963  ("a  party  seeking  to  avoid 
the  bar  of  the  statute  on  the  ground  of  fraud  must  aver  and  show 
that  he  used  due  diligence  to  detect  the  fraud,  and  if  he  had  the 
means  of  discovering  it,  he  will  be  held  in  equity  to  have  known 
it");  Hubbard  v.  Manhattan  Trust  Co.,  87  Fed.  51,  30  C.  C.  A.  520; 
Cutter  v.  Iowa  Water  Co.,  128  Fed.  505  ("there  must  be  allegations 
and  evidence  showing  what  he  did  to  discover  the  fraud,  and  a 
showing  why  he  did  not  discover  it");  Melms  v.  Pabst  Brewing  Co., 
93  Wis.  153,  57  Am.  St.  Rep.  899,  66  N.  W.  518.  See,  also,  Felix  v. 
Patrick,  145  U.  S.  317,  12  Sup.  Ct.  862,  36  L.  ed.  719  (affirming  3(» 
Fed.  457). 

84  Swift  V.  Smith,  79  Fed.  709,  713,  25  C.  C.  A.  154,  49  U.  S.  App. 
188  (citing  many  cases);  Melms  v.  Pabst  Brewing  Co.,  93  Wis.  153, 
174,  57  Am.  St.  Rep.  899,  66  N.  W.  518,  and  cases  cited;  Johnston  v. 
Standard  Min.  Co.,  148  U.  S.  360,  13  Sup.  Ct.  585,  37  L.  ed.  480,  af- 
firming 39  Fed.  304  (plaintiff  is  "chargeable  with  such  knowledge 
as  he  might  have  obtained  upon  inquiry,  provided  the  facts  already 


■  55  INTRODUCTION.  §  28 

§  28.  Breach  of  Express  Continuing  Trust. — In  cases  of 
express  continuing  trusts,  ''so  long  as  the  relation  of 
trustee  and  cestui  que  trust  continues  to  exist,,  no 
length  of  time  will  bar  the  cestui  que  trust  of  his  rights 
in  the  subject  of  the  trust  as  against  the  trustee,  unless 
circumstances  exist  to  raise  a  presumption  from  lapse 
of  time  of  an  extinguishment  of  the  trust,  or  unless 
there  has  been  an  open  denial  or  repudiation  of  the 
trust  brought  home  to  the  knowledge  of  the  cestui  que 
trust  which  requires  him  to  act  as  upon  an  asserted 
adverse  title."^^  But  where  the  repudiation  or  breach 
of  the  trust  has  been  brought  home  to  the.  actual  knowl- 
edge of  the  cestui  que  trust,  the  ordinary  rules  as  to 
laches  apply :  the  same  degree  of  diligence  is  required 
of  him  as  in  cases  of  the  rescission  of  a  contract  for 
fraud  or  mistake.^® 

known  to  him  were  such  as  to  put  upon  a  man  of  ordinary  intelli- 
{lence  the  duty  of  inquiry");  Edwards  v.  Mercantile  Trust  Co.,  124 
Fed,  381.  See,  also,  Eugan  v.  Sabin,  53  Fed.  415,  418,  3  C.  C.  A.  578, 
580,  10  U.  S.  App.  519,  530. 

85  Anderson  v.  Northrop,  30  Fla.  612,  12  South.  318,  324,  and  cases 
cited;  Hoyt  v.  Latham,  143  U.  S.  553,  12  Sup.  Ct.  568,  36  L.  ed.  259; 
New  Orleans  v.  Warner,  175  U.  S.  120,  130,  20  Sup.  Ct.  44,  44  L.  ed. 
96;  Wood  v.  Perkins,  64  Fed.  817,  57  Fed.  258;  Haney  v.  Legg,  129 
Ala.  619,  87  Am.  St.  Kep.  81,  30  South.  34;  Hovey  v.  Bradbury,  112 
Cal.  620,  44  Pac.  1077  (delay  of  eight  years  not  laches  when  no  no- 
tice of  repudiation);  White  v.  Costigan,  138  Cal.  564,  72  Pac.  178; 
French  v.  Woodruff,  25  Colo.  339,  54  Pac.  1015;  Stanley's  Estate  v. 
Pence,  160  Ind.  636,  66  N.  E.  51,  67  N.  E.  441;  Raymond  v.  Flavel, 
27  Or.  219,  40  Pac.  158;  Joy  v.  Ft.  Worth  Compress  Co.,  24  Tex.  Civ. 
App.  94,  58  S.  W.  173.  See,  however,  Preston  v.  Horwitz,  85  Md.  164, 
36  Atl.  710,  citing  Maryland   cases,  contra. 

86  In  states  where  the  statutes  of  limitations  apply  to  equitable 
actions,  the  rules  as  to  the  time  when  the  statute  begins  to  run  are 
generally  analogous  to  those  which  apply  to  the  running  of  time 
considered  as  an  element  of  laches.  Consequently  both  classes  of 
cases  may  be  cited  as  authority  for  the  text:  See  Naddo  v.  Bardon, 
51  Fed.  493,  2  C.  C.  A.  335,  4  U.  S.  App.  642,  681  (affirming  47  Fed. 
782);    Church    of   Christ   v.   Reorganized   Church   of  Jesus   Christ   of 


§  28  EQUITABLE    KEMEDIES.  56 

Constructive  and  resulting  trusts  are  also  governed 
by  the  ordinary  rules  as  to  laches  ;^^  but  in  cases  of 
resulting  trust,  where  the  trustee  constantly  acknowl- 
edges the  right  of  the  one  in  whose  favor  the  trust  is 
raised  by  virtue  of  his  payment  of  the  purchase-money, 

Latter-Day  Saints,  70  Fed.  179,  17  C.  C.  A.  387,  36  XJ.  S.  App.  110; 
Curtis  V.  Lakin,  94  Fed.  251,  36  C.  C.  A.  222;  Nash  v.  Ingalls,  101 
Fed.  645,  41  C.  C.  A.  545  (affirming  79  Fed.  510);  Swift  v.  Smith,  79 
Fed.  709,  714,  25  C.  C.  A.  154,  159,  49  U.  S.  App.  188;  Hitchcock  v. 
Cosper  (Ind.),  73  N.  E.  264;  Mantle  v.  Speculator  Min.  Co.,  27  Mont. 
473,  71  Pac.  665;  Church  v.  Winton,  196  Pa.  St.  107,  46  Atl.  363; 
Snipes  v.  Kelleher,  31  Wash.  336,  72  Pac.  67. 

87  The  rules  in  this  respect  as  to  laches  and  the  statute  of  limi- 
tations are  identical;  cases  of  both  kinds  are  therefore  cited:  See 
Lemoine  v.  Dunklin  County,  51  Fed.  487,  2  C.  C.  A.  343,  10  U.  S.  App. 
227  (affirming  46  Fed.  219);  McMonagle  v.  McGlinn,  85  Fed.  88; 
Nouges  V.  Newlands,  118  Cal.  102,  50  Pac.  386;  Schofield  v.  Wooley, 
98  Ga.  548,  58  Am.  St.  Rep.  315,  25  S.  E.  769;  McLaflin  v.  Jones,  155 
111.  539,  40  N.  E.  330,  affirming  55  111.  App.  518  (delay  of  thirteen 
years);  Blackledge  v.  Blackledge  (Iowa),  91  N.  W.  818;  Wilson  v. 
Louisville  Trust  Co.,  102  Ky.  522,  44  S.  W.  121;  Patterson  v.  Hewitt 
(N.  Mex.),  66  Pac.  552,  55  L.  E.  A.  658;  Southall  v.  Southall,  6  Tex. 
Civ.  App.  694,  26  S.  W.  150;  Eedford  v.  Clark,  100  Va.  115,  40  S.  E. 
630;  Merton  v.  O'Brien,  117  Wis.  437,  94  N.  W.  340;  Boyd  v.  Mutual 
Fire  Assn.,  116  Wis.  155,  96  Am.  St.  Rep.  948,  90  N.  W.  1086,  61  L. 
E.  A.  918,  94  N.  W.  171  (officers  and  directors  of  corporations  are 
not  express  trustees  and  are  not  precluded  from  setting  up  limitations). 
In  Landis  v.  Saxton,  105  Mo.  486,  24  Am.  St.  Eep.  406,  16  S.  W.  912, 
the  rule  is  stated  as  follows:  "The  trusts  against  which  the  statute 
will  not  run  are  those  technical  and  continuing  trusts  which  are  not 
at  all  cognizable  at  law,  but  fall  within  the  proper,  peculiar,  and 
exclusive  jurisdiction  of  a  court  of  equity;  but  other  trusts  which 
are  the  ground  of  an  action  at  law  are  open  to  the  operation  of  the 
statute." 

The  United  States  supreme  court  has  drawn  a  distinction  be- 
tween cases  involving  actual  fraud  and  cases  of  constructive  fraud 
merely — such  as  the  purchase  by  the  trustee  of  the  trust  property 
for  a  price  which  was  fair  at  the  time  of  the  transaction — holding 
the  cestui  que  trust  to  a  more  stringent  obligation  of  diligence  in  the 
latter  class  of  cases:  See  Hammond  v.  Hopkins,  143  U.  S.  224,  250, 
12  Sup.  Ct.  418,  36  L.  ed.  134. 


57  INTKODUCTION.  §§  29-31 

the  trust  is  properly  treated  as  express,  so  far  as  the 
operation  of  the  doctrine  of  laches  is  concerned.^* 

§  29.  Excuses:  (2)  Infancy. — Infancy  is  a  defense  for 
delay  both  at  law  and  in  equity.^^  An  infant,  having 
no  capacity  to  sue,  cannot  be  held  blameworthy  for  de- 
laying to  sue.  After  becoming  of  age,  however,  he 
must  act  promptly.^"  Following  the  analogy  of  the 
statute  of  limitations,  it  has  been  held  that  where  time 
has  commenced  to  run  against  the  ancestor,  it  still 
continues  to  run  against  the  minor  heir.^^ 

§  30.  Excuses:  (3)  Mental  Unsoundness. — Laches  can- 
not be  imputed  to  one  of  unsound  miud;^^  and  this 
rule  holds,  although  the  next  friend  who  brings  the  suit 
is  clearly  guilty  of  laches.^^ 

§  31.  Excuses:  (4)  Coverture. — Whether  the  common- 
law  rule  that  a  married  woman  cannot  be  guilty  of 
laches®^  has  been  changed  by  the  modern  statutes  per- 
mitting a  married  woman  to  sue  in  her  own  name,  is 
a  question  on  which  there  appears  to  be  some  disagree- 

88  Fawcett  v.  Fawcett,  85  Wis.  332,  39  Am.  St.  Eep.  844,  55  N.  W. 
405;  Haney  v.  Legg,  129  Ala.  619,  87  Am.  St.  Eep.  81,  30  South.  34. 

89  Eobinson  v.  Kampmann,  5  Tex.  Civ.  App.  605,  24  S.  W.  529;  Cole 
V.  Grigsby  (Tex.  Civ.  App.),  35  S.  W.  680;  Eobinett  v.  Eobinett's 
Heirs  (Va.),  19  S.  E.  845;  Melms  v.  Pabst  Brewing  Co.,  93  Wis.  153, 
57  Am.  St.  Eep.  899,  66  N.  W.  518. 

90  Melras  V.  Pabst  Brewing  Co.,  93  Wis.  153,  57  Am.  St.  Eep.  899, 
€6  N.  W.  518. 

91  Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St.  Eep.  17,  17  S.  W.  539. 

92  Van  Buskirk  v.  Van  Buskirk,  148  111.  9,  35  N.  E.  383  (delay  of 
forty-two  years);  Kidder  v.  Houston  (N.  J.  Eq.),  47  Atl,  336;  Trow- 
bridge V.  Stone's  Admr.,  42  W.  Va.  454,  26  S.  E.  363. 

93  Kidder  v.  Houston  (N.  J.  Eq.),  47  Atl.  336 

04  Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St.  Eep.  17,  17  S.  W. 
589;  Lindell  Eeal  Estate  Co.  v.  Lindell,  142  Mo.  61,  43  S.  W.  368; 
€ole  V.  Grigsby  (Tex.  Civ.  App.),  35  S.  W.  680. 


{§  32,33  EQUITABLE    EEMEDIES.  58 

ment.^^  The  marital  relation  may,  so  long  as  cohabi- 
tation continues,  afford  the  wife  a  partial  or  total  ex- 
cuse for  delay  in  commencing  litigation  to  which  the 
husband  is  a  party  defendant.^^ 

§  32.  (5)  When  Laches  not  Imputed  to  Reversioners. — 
It  is  generally  held  "that  no  laches  can  be  imputed  to 
reversioners  in  a  contest  between  them  and  the  tenant 
for  life  over  the  reversionary  property  until  after  the 
termination  of  the  life  estate,  unless  it  be  shown  clearly 
and  unequivocally  that  before  that  time  they  had  actual 
knowledge  of  an  abandonment  by  the  life  tenant  of  her 
status  as  such,  and  of  a  holding  of  the  property  by  her 
under  a  different  and  adverse  right."^^  And  it  is  fur- 
ther held  "that  the  onus  of  showing  such  notice  or 
knowledge  as,  when  coupled  with  long  acquiescence, 
Avould  amount  to  laches,  is  on  the  party  urging  laches 
as  a  defense."^^ 

§  33.  (6)  When  Party  in  Possession  not  Chargeable 
with  Laches. — A  party  in  possession  of  land  who  resorts 

85  Compare  Lindell  Eeal  Estate  Co.  v.  Lindell,  142  Mo.  61,  43  S.  W, 
368  (no  laches),  with  Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St. 
Eep.  17,  17  S.  W.  589  (guilty  of  laches  with  respect  to  her  separate 
property).  See,  also,  Phillips  v.  Pinney  Coal  &  Coke  Co.,  53  W.  Va. 
543,  97  Am.  St.  Eep.  1040,  44  S.  E.  774,  where  a  married  woman  was 
held  guilty  of  laches;  McPeck's  Heirs  v.  Graham's  Heirs  (W.  Va.), 
49  S.  E.  125  (same);  Waldron  v.  Harvey,  54  W.  Va.  608,  102  Am.  St. 
Eep.  959,  46  S.  E.  603  (laches  cannot  be  imputed  to  a  married  woman 
to  defeat  her  right  to  land  not  her  separate  estate). 

96  Fawcett  v.  Fawcett,  85  Wis.  332,  39  Am.  St.  Eep.  844,  55  N.  W. 
405;  Conner  v.  Leach,  84  Md.  571,  36  Atl.  591. 

97  Anderson  v.  Northrop,  30  Fla.  612,  12  South.  318,  and  cases 
cited;  Howell  v.  Jump,  140  Mo.  441,  41  S.  "W.  976,  And  see  Gibson 
V.  Herriott,  55  Ark.  85,  29  Am.  St.  Eep.  17,  17  S.  W.  589. 

98  Anderson  v.  Northrop,  30  Fla.  612,  12  South.  318,  and  cases 
cited.  "And  it  is  for  the  party  urging  laches  to  show  when  his 
adversary  acquired  a  knowledge  of  the  truth,  and  to  prove  that  he 
knowingly  forebore  to   assert  hifl  right." 


59  INTRODUCTION.  S  34 

to  a  court  of  equity  to  settle  a  question  of  title  is  not 
chargeable  with  laches,  no  matter  how  long  his  delay .®® 
Such  a  party  is  at  liberty  to  wait  until  his  title  is  at- 
tacked before  he  is  obliged  to  act.  The  most  frequent 
illustrations  of  this  principle  are  found  in  suits  by 
parties  in  possession  to  remove  a  cloud  on  title  or  to 
quiet  title.  Where,  however,  statutes  permit  such  suits 
by  parties  out  of  possession,  the  doctrine  of  laches  does 
apply,  if  the  plaintiff  is  not  in  possession.^"" 

§  34.  (7)  Pendency  of  Another  Suit  as  Excuse  for  Delay. 
The  pendency  in  the  same  or  in  another  jurisdiction  of 
a  suit  relating  to  the  subject-matter  is  generally  re- 
garded as  an  excuse  for  delay  until  its  termination; 
provided,  however,  this  other  suit  is  prosecuted  with 
due  diligence.     Such  a  condition  may  arise  when  the 

99  Simmons  Creek  Coal  Co.  v.  Doran,  142  U,  S.  417,  12  Sup.  Ct. 
239,  35  L.  ed.  1063  (delay  of  forty  years);  Thompson  v.  Dumas,  85 
Fed.  517,  29  C.  C.  A,  312;  Massenburg  v.  Denison,  71  Fed.  618,  18 
C.  C.  A.  280,  30  U.  S.  App.  612;  Gunnison  Gas  &  Water  Co.  v. 
Whitaker,  91  Fed.  191;  Shaw  v.  Allen,  184  III.  77,  56  N.  E.  403 
(affirming  85  111.  App.  23);  Gordon  v.  Johnson,  186  111.  18,  57  N.  E. 
790  (reversing  79  111.  App.  423);  Brumback  v.  Brumback,  198  111. 
66,  64  N.  E.  740  (owner  in  common  in  possession  cannot  be  precluded 
by  laches  from  asserting  a  right  to  partition  or  to  assignment  of 
(lower);  Sheldon  v.  Dunbar,  200  111.  490,  65  N.  E.  1095  (delay  of 
eleven  years  in  asserting  right  to  specific  performance  not  laches) ; 
Hayes  v.  Carroll,  74  Minn.  134,  76  N.  W.  1017  (delay  of  twenty-three 
years).  In  Cook  v.  Lasher,  73  Fed.  701,  19  C.  C.  A.  654,  42  U.  S. 
App.  42,  it  was  held  that  a  delay  of  twenty-one  years  in  suing  to 
annul  a  void  tax  deed  to  the  state  was  not  laches.  It  has  been  held 
that  "so  long  as  a  defendant  can  assert  an  equitable  title  with- 
out invoking  any  affirmative  relief,"  the  doctrine  of  stale  demand 
does  not  apply:  Hensel  v.  Kegans  (Tex.  Civ.  App.),  28  S.  W.  705. 
In  Jackson  v.  Boyd  (Ark.),  87  S.  W.  126,  neither  party  was  in  pos- 
session, and  a  delay  of  thirteen  years  was  held  not  to  be  laches. 
See,  also.  Weir  v.  Cordy-Fisher  Lumber  Co.  (Mo.),  85  S.  W.  341;  Wal- 
dron  v.  Harvey,  54  W.  Va.  608,  102  Am.  St.  Eep.  959,  46  S.  E.  603. 

100  Sage  V.  Winona  &  St.  P.  E.  Co.,  58  Fed.  297,  7  C.  0.  A.  237, 
19  U.  S.  App.  1. 


I  35  EQUITABLE    EEMEDIES.  60 

complainant  seeks  the  wrong  jurisdiction  or  the  wrong 
remedy  in  the  first  instance;  and  it  may  also  occur 
when  the  decision  in  one  case  depends  largely  upon 
that  in  another.^ °^  As  already  intimated,  however, 
the  mere  institution  of  a  suit  does  not  relieve  a  person 
from  the  charge  of  laches.  If  he  fails  in  the  diligent 
prosecution  of  the  action  the  consequences  are  the  same 
as  though  no  action  had  been  begun.^"^ 

§  35.  (8)  Miscellaneous  Excuses. — As  what  amounts 
to  laches  depends  largely  upon  the  circumstances  of 
each  particular  case,  so,  also,  the  excuses  which  may 
be  satisfactory  to  the  court  are  many  and  various.  A 
few  additional  ones  may  here  be  mentioned.  It  has 
been  held  that  where  the  party  interposing  the  defense 
of  laches  has  contributed  to  or  caused  the  delay,  he 
cannot  take  advantage  of  it.^''^  Likewise,  a  constant 
recognition  of  the  right  by  all  the  parties  has  been  held 
a  sufficient  excuse.  ^°^  In  some  instances,  prompt  ac- 
tion looking  toward  the  enforcement  of  the  claim  has 

101  Thus,  a  failure  to  sue  pending  the  decision  of  the  federal 
Land  Department  has  been  held  not  to  be  laches:  Hodge  v.  Palms, 
117  Fed.  396.  Likewise,  the  pendency  of  one  suit  to  test  the  va- 
lidity of  a  patent  has  excused  delay  in  bringing  other  suits:  United 
States  Mitis  Co.  v.  Detroit  Steel  &  Spring  Co.,  122  Fed.  863.  The 
pendency  of  a  suit  in  the  federal  court  which  has  finally  been  dis- 
missed for  want  of  jurisdiction  has  excused  delay  in  suing  in  a  state 
court:  Russell  v.  Dayton  Coal  &  Iron  Co.,  109  Tenn.  43,  70  S.  W. 
1.  Delay  in  suing  to  set  aside  an  agreement  has  been  excused  pend- 
ing an  unsuccessful  suit  for  reformation:  Russell  v.  Russsell,  129 
Fed.  434.  In  general,  see,  also,  McAfee  v.  Reynolds,  130  Ind.  33,  30 
Am.  St.  Rep.   194,  28  N.  E.  423. 

102  Johnston  v.  Standard  Min.  Co.,  148  U.  S.  360,  13  Sup.  Ct. 
585,  37  L.  ed.  480. 

103  Richards  v.  Hatfield,  40  Neb.  879,  59  N.  W.  777;  Hellams  v. 
Prior,  64  S.  C.  296,  42  S.  E.  106  (delay  due  to  defendant's  requests 
for  time). 

104  Riggs  V.  Polk,  3  Tex.   Civ.  App.  179,  21  S.  W.  1013. 


61  INTRODUCTION.  I  33 

excused  delay  in  suing.^*^^  It  is  sometimes  said  that 
the  same  diligence  is  not  required  between  members  of 
the  same  family  as  between  strangers,^"*  A  few  other 
miscellaneous  cases  will  be  found  in  the  note.^"'^ 

It  has  been  distinctly  held  that  the  plaintiff's  poverty 
is  not  a  suflSicient  excuse  for  laches  ;^°^  but  the  reason  as- 
signed for  this  ruling  is  not  so  convincing  as  to  pre- 
clude the  hope  that  it  may  sometimes  be  a  circumstance 
to  be  considered  in  his  favor,  at  least  in  connection  with 
other  disabilities  or  excuses.  The  mere  fact  that  the 
complainant  resides  in  a  remote  region,  and  therefore 
remains  in  ignorance  of  facts  which  are  notorious  at 
the  place  where  the  property  is  situated,  is  not  an  ex- 

105  Billings  v.  Aspen  Min.  &  S.  Co.,  51  Fed.  338,  2  C.  C.  A.  252, 
10  U.  S.  App.  1;  Ulman  v.  Clark,  75  Fed.  868  (claimants  not  guilty 
of  laches  "when  they  do  everything  that  is  necessary  to  protect 
their  rights,  except  the  commencement  of  a  legal  action");  Dunning 
V.  Bates,  186  Mass.  123,  71  N.  E.  309. 

106  Hall  V.  Otterson,  52  N,  J.  Eq.  522,  28  Atl.  907.  See,  also,  ante, 
note  96. 

107  Southern  Pac.  R.  Co.  v.  Stanley,  49  Fed.  263;  West  Arlington 
Imp.  Co.  V.  Mt.  Hope  Retreat,  97  Md.  191,  54  Atl.  982  (plaintiff's 
delay  in  suing  to  enjoin  pollution  of  stream  until  convinced  that 
water  was  rendered  unfit  for  use  is  not  laches) ;  Kinkead  v.  Ryan, 
64  N.  J.  Eq.  454,  53  Atl.  1053  (failure  of  life  tenant  to  insist  upon 
his  rights  against  the  remainderman  while  the  latter  is  an  infant 
is  not  laches). 

108  Leggett  V.  Standard  Oil  Co.,  149  U.  S.  287,  13  Sup.  Ct.  902, 
37  L.  ed.  737;  Hayward  v.  National  Bank,  96  U.  S.  611,  24  L.  ed.  855; 
Naddo  V.  Bardon,  51  Fed.  493,  2  C,  C.  A.  335,  4  U.  S.  App.  642  (af- 
firming 47  Fed.  782);  Wolf  v.  Great  Falls  etc.  Co.,  15  Mont.  49  38 
Pac.  115;  Patterson  v.  Hewitt  (N.  Mex.),  66  Pac.  552,  55  L.  R.  A. 
658.  In  Naddo  v.  Bardon,  supra,  Brewer,  J.,  says,  with  apparent 
periousness:  "It  is  to  the  glory  of  our  profession  in  this  country  that 
it  is  ever  ready  to  champion  the  cause  of  the  poor;  and  no  man  who 
has  a  just  claim,  and  makes  an  effort  to  assert  it,  will  ever  fail  of 
securing  the  needed  professional  assistance.  The  courts  are  always 
open,  and  the  lawyers  are  always  willing  and  at  hand;  and  if  he 
fails  to  establish  his  rights  it  is  because  he  does  not  make  an  ef- 
fort to  assert  them." 


§  SQ  EQUITABLE    REMEDIES.  62 

cuse.'^^  And  the  fact  that  the  complainant  delays 
because  he  fears  that  action  may  interfere  with  his 
employment  or  with  contractual  rights  is  not  sufifl- 
cient."<» 

§  36.  Pleading  Excuses  for  laches. — "The  party  who 
appeals  to  the  conscience  of  the  chancellor  in  support 
of  a  claim,  when  there  has  been  laches  in  prosecuting 
it,  or  long  acquiescence  in  the  assertion  of  adverse 
rights,  should  set  forth  in  his  bill,  specifically,  what 
were  the  impediments  to  an  earlier  prosecution  of  his 
claim,  how  he  came  to  be  so  long  ignorant  of  his  rights, 
and  the  means  used  by  the  respondents  to  fraudulently 
keep  him  in  ignorance ;  and  how  and  when  he  first  came 
to  a  knowledge  of  the  matters  alleged  in  his  bill ;  other- 
wise the  chancellor  must  refuse  to  consider  his  case, 
on  his  own  showing,  without  inquiring  whether  there 
is  a  demurrer  or  formal  plea  of  the  statute  of  limita- 
tions contained  in  the  answer."^ ^^ 

109  Broderick's  Will,  21  Wall.  503,  22  L.  ed.  599;  Eudland  v.  Mas- 
tie,  77  Fed.  688;  Naddo  v.  Bardon,  51  Fed.  493,  2  C.  C.  A.  335,  4 
U.  S.  App.  642  (affirming  47  Fed.  782). 

110  Lane  &  Bodley  Co.  v.  Locke,  150  U.  S.  193,  14  Sup.  Ct.  78, 
37  L.  ed.  1049  (fear  of  dismissal  from  employment  is  no  excuse); 
Thorn  Wire  Hedge  Co.  v.  Washburn  &  Moen  Mfg.  Co.,  159  U.  S. 
423,  16  Sup.  Ct.  94,  40  L.  ed.  205  (fear  that  litigation  might  imperil 
receipt  of  future  royalties  under  contract  is  no  excuse). 

111  Badger  v.  Badger,  2  Wall.  95,  17  L.  ed.  836;  Potts  v.  Alexander, 
118  Fed.  885;  Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St.  Rep.  17,  17 
S.  W.  589;  Wetzel  v.  Minn.  Ry.  Transfer  Co.,  65  Fed.  23,  12  C.  C.  A. 
490,  27  U.  S.  App.  594;  Lant  v.  Manley,  71  Fed.  7;  Wilcoxon  v.  Wil- 
coxon,  199  111.  244,  65  N.  E.  229.  It  is  not  necessary  for  the  de- 
fendant to  set  up  laches.  "To  let  in  the  defense  that  the  claim  is 
stale,  and  that  the  bill  cannot,  therefore,  be  supported,  it  is  not 
necessary  that  a  foundation  shall  be  laid  by  any  averment  in  the 
answer  of  the  defendants.  If  the  case,  as  it  appears  at  the  hearing, 
is  liable  to  the  objection  by  reason  of  the  laches  of  the  complain- 
ants, the  court  will,  upon  that  ground,  be  passive  and  refuse  relief": 
Sullivan  v.  Railroad  Co.,  94  U.  S.  806,  24  L.  ed,  324;  Moore  v.  Nickley 
(C.    C.  A.),   133   Fed.   289. 


«a  LNTEHPLEADEB.  I  »7 


CHAPTER  II. 


INTERPLEADER. 

ANALYSIS. 

J  37.  Common-law   interpleader. 

§  38,  Interpleader — General  nature  and  object. 

§  39.  Rationale  of  the  remedy. 

§  40.  Nature  of  the  risk  to  which  plaintiff  is  exposed. 

§  41.  At  what  stage  interpleader  may  be  brought. 

§  42.  The   claims,  legal  or   equitable. 

§  43.  Essential  elements. 

ii  44-46.  First:    The  same  thing,  debt  or  duty. 

§  45.  Same;   claims   of  different   amounts. 

§  46.  Same;  illustrations. 

§  47.  Second:    Privity   between    the    opposing   claimants. 

§§  48-51.  Third:    Plaintiff  a  mere  stake-holder. 

§  49.  Same;    admission   or   waiver   of   plaintiff's   claim;    disputa 
as  to  his  liability. 

§  50.  Same;  stake-holder  must  be  plaintiff;  fund  must  be  in  his 
custody. 

§  51.  Same;   plaintiff  may  have  interest  in  the  legal  question. 

{§  52-57.  Fourth:    No   independent   liability   to   one   claimant. 

§  53.  Same;   independent  liability  arising  from  nature   of  orig- 
inal relation. 

§  54.  Same;  bailees  and  agents. 

§  55.  Same;  tenant  and  landlord. 

§  56.  Same;  parties,  to  contracts. 

§  57.  Same;  by  receiver;  by  master  of  a  vessel;  by  sheriff. 

§  58.  Requisites   of  the   bill   of   complaint. 

§  59.  Affidavit  of  non-collusion;  payment  into  court;  costs. 

§  60.  Bill  in  the  nature  of  a  bill  of  interpleader. 

§  61.  Interpleader  in  legal  actions. 

§  37.  Common-law  Interpleader. — "Under  the  ancient 
common  law,  the  relief  of  interpleader  was  allowed  in 
two  special  cases  in  a  legal  action  by  a  court  of  law: 
when  two  or  more  persons  had  made  a  joint  bailment 
and  then  brought  separate  actions  of  detinue  against 
the  depositary  for  the  thing  bailed ;  and  when  the  thing 


8  S8  EQUITABLE    EEMEDIES.  64 

came  into  the  holder's  possession  by  finding,  and  two 
or  more  persons  claiming  to  be  owners  sued  him  in  sep- 
arate actions  of  detinue.  Modern  statutes,  English 
and  American,  have  enabled  courts  of  law  to  grant  a 
similar  relief,  in  a  summary  manner,  in  certain  legal 
actions,  but  this  legislation  has  no  connection  with  the 
ancient  common-law  jurisdiction  above  mentioned."^ 

§  38.  Interpleader — General  Nature  and  Object — "I 
purpose  in  this  chapter  to  describe  the  general  equitable 
jurisdiction  to  grant  the  remedy  of  interpleader  inde- 
I>endent  of  statute;  and  afterwards  to  notice  briefly  the 
modern  statutes,  some  of  which  may  perhaps  have  en- 
larged that  jurisdiction,  but  most  of  which  have  simply 
conferred  a  similar  jurisdiction  upon  courts  of  law,  to 
be  exercised  in  certain  kinds  of  legal  actions.  Where 
two  or  more  persons,  whose  titles  are  connected  by 
reason  of  one  being  derived  from  the  other,  or  of  both 
being  derived  from  a  common  source,  claim  the  same 
thing,  debt,  or  duty  by  different  or  separate  interests, 
from  a  third  person,  and  he,  not  knowing  to  which  of 
the  claimants  he  ought  of  right  to  render  the  debt  or 
duty,  or  to  deliver  the  thing,  fears  he  may  be  hurt  by 
some  of  them,  he  may  maintain  a  suit  and  obtain 
against  them  the  remedy  of  interpleader.  In  his  bill 
of  complaint  he  must  state  his  own  rights  and  their 
several  claims,  and  pray  that  they  may  interplead,  so 
that  the  court  may  adjudge  to  whom  the  thing,  debt, 
or  duty  belongs,  and  he  may  be  indemnified.  If  any 
suits  at  law  have  been  brought  against  him,  he  may 
also  pray  that  such  proceedings  be  restrained  until  the 

1  "For  a  more  full  account  of  this  common-law  relief,  see  Mit- 
ford's  Eq.  PL,  Jeremy's  ed.,  141,  142;  Crawshay  v.  Thornton,  2 
Mylne  &  C.  1":  Pom.  Eq.  Jur.,  §  1320,  note.  As  to  interpleader  in 
common-law  actions  under  the  practice  in  Pennsylvania,  see  Brown- 
field  V.  Canon,  25  Pa.  St.  299;  Pennypacker 's  Appeal,  57  Pa.  St.  114. 


€5  INTEEPLEADER.  §  38 

right  be  determined.^  The  object  of  the  suit  is,  that 
the  conflicting  claimants  shall  litigate  the  matter 
among  themselves,  without  involving  the  stake-holder 
in  their  controversy,  with  which  he  has  no  interest.  It 
is  plain,  therefore,  that  the  plaintiff  can  obtain  no 
specifiG  relief.  So  far  as  he  is  concerned,  upon  his 
filing  the  bill,  and  surrendering  up  the  thing  or  money 
into  the  custody  of  the  court,  his  remedy  is  exhausted 
by  the  decree  that  the  defendants  do  interplead  with 
each  other,  and  that  he  be  freed  from  or  indemnified 

2  This  description  is  taken,  with  some  additions  and  alterations,  to 
conform  to  later  decisions,  from  Mitf ord 's  Equity  Pleading,  58,  59. 
As  to  the  general  nature  of  the  remedy,  see  Crawshay  v.  Thornton, 
2  Mylne  &  C.  1;  Sieveking  v.  Behrens,  2  Mylne  &  C.  581;  Glyn  v. 
Ducsbury,  11  Sim.  139,  147;  Langston  v.  Boylston,  2  Ves.  101,  103, 
109;  Jones  v.  Thomas,  2  Smale  &  G.  186;  Prudential  Assur.  Co.  v. 
Thomas,  L.  R.  3  Ch.  74;  Farley  v.  Blood,  30  N.  H.  354;  Lincoln  v. 
Rutland  etc.  R.  R.,  24  Vt.  639;  Crane  v.  McDonald,  118  N.  Y.  648,  23 
N.  E.  991;  Bassett  v.  Leslie,  123  N.  Y.  396,  25  N.  E.  386;  Dorn  v. 
Fox,  61  N.  Y.  264;  Shaw  v.  Coster,  8  Paige,  339,  35  Am.  Dec.  690; 
Mohawk  etc.  R.  E.  v.  Clute,  4  Paige,  384;  Bedell  v.  Hoffman,  2 
Paige,  199;  Badeau  v.  Rogers,  2  Paige,  209;  Bell  v.  Hunt,  3  Barb. 
Ch.  391;  Richards  v.  Salter,  6  Johns.  Ch.  445;  Atkinson  v.  Manka, 
1  Cow.  691;  Cady  v.  Potter,  55  Barb.  463;  Delaware,  L.  &  W.  R.  Co. 
V.  Corwith,  5  N.  Y.  Supp.  792,  16  Civ.  Proc.  Rep.  312;  Packard  v. 
Stevens,  58  N.  J.  Eq.  489,  46  Atl.  250;  Wakeman  v.  Kingsland,  46 
N.  J.  Eq.  113,  18  Atl.  680;  Mount  Holly  etc.  Tp.  Co.  v.  Ferree,  17 
N.  J.  Eq.  117;  Coates  v.  Roberts,  4  Rawle  (Pa.),  100;  National  Park 
Bk.  V.  Lanahan,  60  Md.  477;  Dickeshied  v.  Exchange  Bank,  28  W.  Va. 
340;  Strange  v.  Bell,  11  Ga.  103;  Burton  v.  Black,  32  Ga.  53;  Hayes  v. 
Johnson,  4  Ala.  267;  Morris  v.  Cain's  Exrs.,  34  La.  Ann.  657,  35  La. 
Ann.  759;  Michigan  etc.  Co.  v.  White,  44  Mich.  25,  5  N.  W.  1086;  Cogs- 
well V.  Armstrong,  77  111.  139;  Hinckley  v.  Pfister,  83  Wis.  64,  53  N. 
W.  21;  Roselle  v.  Farmers'  Bank,  119  Mo.  84,  24  S.  W.  744;  Hathaway 
V.  Foy,  40  Mo.  540;  Orr  Water  Ditch  Co.  v.  Larcombe,  14  Nev.  53;  Pope 
V.  Ames,  20  Or.  199,  25  Pae.  393;  North  Pacific  Lumber  Co.  v.  Lang, 
28  Or.  246,  52  Am.  St.  Rep.  780,  42  Pae.  799;  Pfister  v.  Wade,  56  Cal. 
43;  McWhirter  v.  Halstead,  24  Fed.  828;  Louisiana  State  Lottery 
Co.  V.  Clark,  16  Fed,  20,  4  Woods,  169. 
Equitable  Remedies,  Vol.  1—5 


§  39  EQUITABLE    REMEDIES.  66 

against  their  demands,  and  that  he  recover  his  costs; 
with  the  result  of  their  dispute  he  has  no  concern."^ 

§  3&.  Rationale  of  the  Remedy. — "The  ground  of  the 
jurisdiction  is  plain.  The  party  seeking  the  remedy  is 
exposed  to  the  hazard,  vexation  and  expense  of  several 
actions  at  law  for  the  same  demand,  while  he  is  ready 
and  willing  to  satisfy  that  demand  in  favor  of  the  claim- 
ant who  establishes  his  right  thereto.  For  this  liabil- 
ity the  law  furnishes  no  adequate  remedy,  and  in  most 
instances  no  remedy  whatever."*  "It  is  sometimes  sup- 
posed that  the  remedy  of  interpleader  is  allowed  to 
avoid  the  risk  of  two  recoveries.  This  is  entirely  a 
mistaken  view.     If  a  party  has  in  any  way  made  him- 

8  Pom.  Eq.  Jur.,  §  1320.  This  section  of  Pom.  Eq.  Jur.  is  cited  in 
Crass  V.  Memphis  &  C.  B.  Co.,  96  Ala.  447,  11  Soutli.  480.  That 
the  decree  of  interpleader  is  interlocutory  and  does  not  determine 
the  validity  of  the  claims  in  controversy,  see  Heald  v.  Rhind,  86 
Md.  320,  38  Atl.  43;  Owings  v.  Rhodes,  65  Md.  408,  9  Atl.  903,  In 
general,  as  to  the  practice  upon  a  decree  of  interpleader  see  Penn 
Mutual  Life  Ins.  Co.  v.  Union  Trust  Co.,  83  Fed.  891  (after  inter- 
pleader the  parties  occupy  the  position  of  plaintiff  and  defendant) ; 
Willson  V.  Salmon,  45  N.  J.  Eq.  257,  17  Atl.  815;  Lamon  v.  McKee, 
18  D.  C.  (7  Mackey)  446,  479;  State  v.  Kumpff,  62  Mo.  App.  332 
(result  of  decree  upon  plaintiff's  rights);  McMurray  v.  Sisters  of 
Charity,  68  N.  J.  L.  312,  53  Atl.  389. 

That  an  ordinary  interpleader  suit  is  not  an  action  in  rem  so  as 
to  dispense  with  personal  service  of  process,  see  Cross  v.  Armstrong, 
44  Ohio  St.  613,  10  N.  E.  160;  Gary  v.  Northwestern  M.  A.  Assn. 
(Iowa),  50  N.  W.  27;  Washington  Life  Ins.  Co.  v.  Gooding,  19  Tex. 
Civ.  App.  490,  49  S.  W.  123;  Expressman's  Mut.  Benef.  Assn.  v.  Hur- 
lock,  91  Md.  585,  80  Am.  St.  Rep.  470,  46  Atl.  957. 

In  addition  to  the  summary  remedy  by  motion  in  a  legal  action, 
the  statutes  of  some  states  contain  provisions  relating  to  the  action 
of  interpleader:  See  National  Sav.  Bank  v.  Cable,  73  Conn.  568,  48 
Atl.  428  (Pub.  Acts  of  Conn.,  1893,  c.  42);  Barnes  v.  Bamberger,  196 
Pa.  St.  123,  46  Atl.  303  (act  of  June  13,  1836);  Mosher  v.  Bruhn, 
15  Wash.  332,  46  Pac.  397  (2  Hill's  Code,  Wash.,  §  153);  City  of 
Atlanta  v.  McDaniel,  96  Ga.  190,  22  S.  E.  896  (Georgia  Code,  §  3234). 

4  Pom.  Eq.  Jur.,  §  1320,  end.  Quoted  in  Atkinson  v.  Carter,  101 
Mo.  App.  477,  74  S.  W.  502, 


67  INTERPLEADER.  S  40 

self  liable,  even  for  the  same  demand,  to  two  claim- 
ants, he  is  not  entitled  to  an  interpleader.  It  is  the 
essential  fact  that  he  should  actually  be  liable  to  only 
one  of  the  claimants.  The  true  rationale  of  inter- 
pleader is,  that  the  party  thereby  avoids  the  risk  of 
being  vexed  by  two  or  more  suits.  Even  though  there 
is  no  danger  of  his  being  compelled  to  pay  the  same  de- 
mand twice,  the  danger  of  two  suits  against  him,  with 
the  consequent  trouble  and  expense,  is  the  sufficient 
ground  for  the  remedy.^  The  supreme  object  of  an  in- 
terpleader is  to  protect  the  plaintiff, — the  stake-holder, 
— and  not  the  claimants  against  him;  to  protect  him 
from  the  danger  and  vexation  of  two  opposing  suits 
for  the  same  demand  by  those  claimants,  while  he  is 
ready  and  willing  to  pay  the  demand  to  the  one  who  is 
judicially  ascertained  to  be  entitled  to  it."^ 

§  40.     Nature  of  the  Risk  to  Which  Plaintiff  is  Exposed. 
The  danger  of  a  double  vexation  must  be  real;  a  mere 

5  Pom.  Eq.  Jur.,  §  1320,  note;  Crawford  v.  Fisher,  1  Hare,  436,  441; 
East  and  West  India  Dock  Co.  v.  Littledale,  7  Hare,  57,  60;  Langston 
V.  Boylston,  2  Ves.  101;  Sablicieh  v.  Russell,  L.  R.  2  Eq.  441;  Greene 
V,  Mumford,  4  R.  I.  313;  School  District  v.  Weston,  31  Mich.  85; 
Pfister  V.  Wade,  56  Cal.  43;  Hechmer  v.  Gilligan,  28  W.  Va.  750,  757; 
Livingstone  v.  Bank  of  Montreal,  50  111.  App.  562;  Yarborough  v. 
Thompson,  3  Smedes  &  M.  (Miss.)  291,  41  Am.  Dec.  626.  In  Craw- 
ford V.  Fisher,  Wigram,  V.  C,  said:  "The  office  of  an  interpleading 
suit  is,  not  to  protect  a  party  against  a  dotiMe  liahility,  but  against 
double  vexation  in  respect  of  one  liability.  If  the  circumstances  of 
a  case  show  that  the  plaintiff  is  liable  to  both  claimants,  that  is  no 
ease  for  interpleader.  It  is  of  the  essence  of  an  interpleading  suit 
that  the  plaintiff  shall  be  liable  to  one  only  of  the  claimants;  and  the 
relief  which  the  court  affords  him  is  against  the  vexation  of  two 
proceedings  on  a  matter  which  may  be  settled  in  a  single    suit." 

6  Pom.  Eq.  Jur.,  §  1320,  note;  Trigg  v.  Hitz,  17  Abb.  Pr.  436; 
Farley  v.  Blood,  30  N".  H.  354;  Michigan  etc.  Co.  v.  White,  44  Mich. 
25,  5  N.  W.  1086;  Newhall  v.  Kastens,  70  111.  156;  Nelson  v.  Barter, 
2  Hem.  &  M.  334,  33  L.  J.  Ch.  705,  10  Jur.,  N.  S.,  832. 


§  40  EQUITABLE    EEMEDIES.  68 

suspicion  of  risk  will  not  be  sufficient  to  support  a  billJ 
It  is  settled,  by  a  long  series  of  cases  in  New  York,  that 
it  is  not  enough  for  the  party  seeking  interpleader  to 
show  that  a  claim  has  been  presented  against  a  fund 
already  claimed  by  another,  but  he  must  prove  that  such 
claim  is  plausible,  and  has  some  reasonable  foundation, 
so  that  he  cannot,  without  hazard,  determine  to  which 
of  the  claimants  he  should  pay  the  fund.^     The  plain- 

7  Pom.  Eq.  Jur.,  §  1320,  note;  Blair  v.  Porter,  13  N,  J.  Eq.  267; 
Baltimore  and  Ohio  R.  R.  Co.  v.  Arthur,  90  N.  Y.  234;  Partlow  v. 
Moore,  184  111.  119,  56  N.  E.  317,  affirming  Moore  v.  Partlow,  84  111. 
App.  119;  Fitch  v.  Brower,  42  N.  J.  Eq.  300,  11  Atl.  330  (reasonable 
doubt  arises  from  the  claim) ;  National  Bank  of  Augusta  v.  Augusta 
etc.  Co.,  99  Ga.  286,  25  S.  E.  686  (claims  should  be  sufficiently  set 
forth  to  enable  the  court  to  determine  whether  it  is  doubtful  or 
dangerous  for  plaintiff  to  act). 

8  Dom  V.  Fox,  61  N.  Y.  264;  Crane  v.  McDonald,  118  N.  Y.  648; 
Pustet  V.  Flannelly,  60  How.  Pr.  67;  Nassau  Bank  v.  Yandes,  *44 
Hun,  55;  Pratt  v,  Myers,  63  Hun,  634,  28  Abb.  N.  C.  460,  18  N.  Y. 
Supp.  466;  Mars  v.  Albany  Savings  Bank,  64  Hun,  429,  19  N.  Y. 
Supp.  791,  affirmed  69  Hun,  398,  23  N.  Y.  Supp.  658;  Stevenson  v. 
New  York  L.  I.  Co.,  10  App.  Div.  233,  41  N.  Y.  Supp.  964;  Lennon 
V.  Metropolitan  L.  I.  Co.,  20  Misc.  Eep.  403,  45  N.  Y.  Supp.  1033; 
Roberts  v.  Van  Home,  21  App.  Div.  369,  47  N.  Y.  Supp.  448;  Cosgriff 
V.  Hudson  City  Sav.  Inst.,  24  Misc.  Rep.  4,  52  N.  Y.  Supp.  189;  Sexton 
V.  Home  Fire  Ins.  Co.,  35  App.  Div,  170,  54  N.  Y.  Supp.  862;  South- 
wark  Nat.  Bank  v.  Childs,  39  App.  Div.  560,  57  N.  Y.  Supp.  789; 
Wells  V.  National  City  Bank,  40  App.  Div.  498,  29  Civ.  Proc.  Rep. 
158,  58  N.  Y.  Supp.  125;  Post  v.  Emmett,  40  App.  Div.  477,  58  N.  Y. 
Supp.  129;  Kreiser  v.  City  of  New  York,  46  App.  Div.  16,  61  N.  Y. 
Supp.  329;  Merchant  v.  Northwestern  M.  L.  I.  Co.,  57  App.  Div.  375, 
68  N.  Y.  Supp.  406.  Many  of  these  cases  concerned  the  showing  re- 
quired to  be  made  by  affidavits  in  the  statutory  interpleader  by  mo- 
tion in  an  action  at  law;  but  it  has  been  repeatedly  held  that  there 
is  no  difference  between  the  rule  in  statutory  interpleader  and  that 
in  interpleader  by  suit.  The  moving  party  is  merely  required  to 
show  that  the  claim  interposed  renders  his  position  hazardous  to  the 
extent  of  creating  a  reasonable  doubt;  he  need  not  show  that  the 
claim  would  probably  be  successful:  Burritt  v.  Press  Pub.  Co.,  19 
App.  Div.  609,  46  N.  Y.  Supp.  295;  Dreyfus  v.  Casey,  52  Hun,  95,  5 
N.  Y.  Supp.  65;  and  his  affidavit  need  not  allege  that  he  himself 
is   in   doubt   as  to   who   has   the  just   claim,   if  it   gives   facts   which 


69  INTEEPLEADER.  S  *1 

tiff's  risk  may  depend  upon  a  doubtful  and  disputed 
question  of  law,  instead  of  a  question  of  fact.  "So  long 
as  a  principle  is  still  under  discussion  ....  it 
would  seem  fair  to  hold  that  there  was  sufficient  doubt 
and  hazard  to  justify  the  protection  which  is  afforded 
by  the  beneficent  action  of  interpleader."* 

§  41.  At  What  Stage  Interpleader  may  be  Brought. — 
"Such  being  the  theory  of  the  remedy,  it  is  not  essen- 
tial that  any  suit  should  have  been  actually  commenced 
by  either  claimant  against  the  plaintiffs.^*^  It  is  enough 
that  the  conflicting  claimants  make  their  respective 
claims  and  threaten  suit.^^  The  plaintiff  must,  how- 
ever, positively  allege  an  actual  claim  made  by  each  de- 
fendant."^^ It  is  held  that  the  plaintiff  cannot  inter- 
plead claimants  who  have  reduced  their  claims  to  judg- 
ment, as  this  would  be  to  increase  instead  of  diminish 

may  raise  a  reasonable  doubt  in  the  mind  of  the  court:  Sehell  v. 
Lowe,  75  Hun,  43,  23  Civ.  Proc.  Rep.  300,  26  N.  Y.  Supp.  991.  The 
rule,  as  applied  in  statutory  interpleader  by  motion  in  a  pending  ac- 
tion, is  designed  for  the  protection  of  the  plaintiff  in  that  action, 
and  cannot  be  invoked  by  the  adverse  claimant;  it  is  the  latter's 
duty  either  to  take  position  squarely  with  respect  to  the  nature  of 
his  claim  or  to  withdraw  the  same:  Butler  v.  Atlantic  Trust  Co.,  28 
Misc.  Rep.  42,  59  N.  Y.  Supp.  814. 

9  Dorn  V.  Fox,  61  N.  Y.  270;  Crane  v.  McDonald,  113  N.  Y.  648, 
654,  23  N.  E,  991;  Sovereign  Camp,  Woodmen  of  the  World  v.  Wood, 
100  Mo.  App.  655,  75  S.  W.  377. 

10  Angell  V.  Hadden,  15  Ves.  244;  Morgan  v.  Marsack,  2  Mer.  107; 
Farley  v.  Blood,  30  N.  H.  354;  Richards  v.  Salter,  6  Johns.  Ch.  445; 
Yates  V.  Tisdale,  3  Edw.  Ch.  71;  Schuyler  v.  Pelissier,  3  Edw.  Ch. 
19];  Strange  v.  Bell,  11  Ga.  103;  Gibson  v.  Goldthwaite,  7  Ala.  281, 
42  Am.  Dec.   592;   Pom.  Eq.  Jur.,   §   1320,  note. 

11  Langston  v.  Boylston,  2  Ves.  101;  Providence  Bank  v.  Wilkinson, 
4  R.  I.  507,  70  Am.  Dec.  160;  Briant  v.  Reed,  14  N.  J.  Eq.  271;  Yar- 
borough  V  Thompson,  3  Smedes  &  M.  (Miss.)  291,  41  Am.  Dec.  626; 
Pom.  Eq.  Jur.,  §  1320,  note. 

12  State  Ta.3  Co.  v.  Gennett,  2  Tenn.  Ch.  82;  Pom.  Eq.  Jur.,  ( 
1320,  naU, 


S  42  EQUITABLE    EEMEDIES.  70 

the  number  of  suits,  and  because  of  the  familiar  rule 
that  a  court  of  equity  cannot  give  relief  when  the  party 
might  have  made  defense  at  law.^^ 

§  42.  The  Claims,  Legal  or  Equitahle. — "The  equitable 
jurisdiction  exists,  although  both  or  all  the  conflicting 
claims  against  the  stake-holder  are  legal,^*  since  it  de- 
pends upon  the  fact  that  distinct  claims  are  made, 
rather  than  upon  their  intrinsic  nature  as  being  legal 
or  equitable.  It  is  not  necessary,  however,  that  all  the 
claims  should  be  legal ;  the  remedy  is  granted  when  one 
of  them  is  legal  and  the  other  equitable.^ ^     Indeed,  if 

13  Yarborough  v.  Thompson,  supra;  McKinney  v.  Kuhn,  59  Miss. 
186.  See,  also,  Larabrie  v.  Brown,  26  L.  J.  Kep.,  Eq.,  N.  S.,  605; 
Bank  v.  Kerr,  2  Md.  Ch.  460;  Hichmer  v.  Gilligan,  28  W.  Va. 
757;  Wabash  R.  Co.  v.  Flannigan,  95  Mo.  App.  477,  75  S,  W.  691. 
In  Yarborough  v.  Thompson  it  was  said:  "There  is  no  evidence  that 
anything  unconscientious  was  done  by  either  of  the  defendants  in 
this  case,  in  obtaining  their  judgments.  Each  proceeded  upon  a  legal 
claim.  The  complainant  defended  each,  but  for  some  cause  was  un- 
successful in  both.  One  of  the  judgments  is  no  doubt  wrong;  but, 
from  the  bill,  the  error  was  induced  by  the  complainant's  answer  to 

the   garnishment If  a  case  of  fraud   or  surprise  in   obtaining 

either  of  the  judgments  were  made  out  against  either  of  the  parties, 
that  might  entitle  the  complainant  to  relief  against  such  party;  but 
that  would  be  done  upon  an  original  bill,  not  a  bill  of  interpleader." 

14  Lowndes  v.  Cornford,  18  Ves.  299. 

15  Quoted  in  Atkinson  v.  Carter,  101  Mo.  App.  477,  74  S.  W.  502. 
See,  also,  Lowndes  v.  Cornford,  supra;  Morgan  v.  Marsack,  2  Mer. 
107;  Wright  v.  Ward,  4  Russ.  215;  Paris  v.  Gilham,  Coop.  56;  Mar- 
tinius  V.  Helrauth,  2  Ves.  &  B.  412;  Smith  v.  Hammond,  6  Sim.  10; 
Crawford  v.  Fisher,  10  Sim.  479;  Hamilton  v.  Marks,  5  De  Gex  & 
S.  638;  Prudential  Assur.  Co.  v.  Thomas,  L.  R.  3  Ch.  74;  Duke  of 
Bolton  V.  Williams,  4  Brown  Ch.  297,  309;  Farley  v.  Blood,  30  N.  H. 
354;  Fairbanks  v.  Belknap,  135  Mass.  179;  Richards  v.  Salter,  6 
Johns.  Ch.  445;  Yates  v.  Tisdale,  3  Edw.  Ch.  71;  Schuyler  v.  Pelissier, 
3  Edw.  Ch.  191;  Lozier's  Exrs.  v.  Van  Saun's  Admrs.,  3  N.  J.  Eq. 
325;  Ireland  v.  Kelly,  60  N.  J.  Eq.  308,  47  Atl.  51;  Oil  Run  Petroleum 
Co.  V.  Gale,  6  W.  Va.  525;  Strange  v.  Bell,  11  Ga.  103;  Burton  v. 
Black,  32  Ga.  53;  Gibson  v.  Goldthwaite,  7  Ala.  281,  42  Am.  Dec. 
592;   Whitney  v.   Cowan,  55  Miss.   626,  647;   Newhall  v.  Kastens,   70 


71  INTERPLEADEE.  S  43 

one  or  more  of  the  conflicting  claims  are  purely  equita- 
ble, there  is  the  stronger  reason  for  a  resort  to  the  equity 
jurisdiction ;  and  prior  to  recent  legislation  in  England 
and  in  the  United  States,  such  a  resort  was  indispensa- 
ble under  those  circumstances."^* 

§  43.  Essential  Elements. — "From  the  description 
given  in  a  previous  paragraph,  and  from  the  whole 
course  of  authorities,  it  is  clear  that  the  equitable  rem- 
edy of  interpleader,  independent  of  recent  statutory 
regulations,  depends  upon  and  requires  the  existence 
of  the  four  following  elements,  which  may  be  regarded 
as  its  essential  conditions :  1.  The  same  thing,  debt,  or 
duty  must  be  claimed  by  both  or  all  the  parties  against 
whom  the  relief  is  demanded;  2.  All  their  adverse 
titles  or  claims  must  be  dependent,  or  be  derived  from 
a  common  source;  3.  The  person  asking  the  relief — the 
plaintiff — must  not  have  nor  claim  any  interest  in  the 
subject-matter;  4.  He  must  have  incurred  no  independ- 

IlL  156;  People's  Sav.  Bank  v.  Look,  95  Mich.  7,  54  N.  W.  629.  In 
England  the  necessity  of  a  resort  to  equity  is  removed,  although  the 
equity  jurisdiction  is  not  at  all  affected,  by  the  statute  of  1  &  2  Wm. 
TV,  c.  58,  §  1,  as  amended  and  enlarged  by  the  common-law  procedure 
act  (23  &  24  Vict.,  c.  126,  §  12),  which  enabled  a  court  of  law,  on 
motion,  to  direct  what  amounts  to  an  interpleader  in  actions  of 
debt,  assumpsit,  trover  and  detinue.  Under  the  present  system  of 
procedure,  equitable  claims  may  be  adjudicated  upon  in  an  inter- 
pleader issue  connected  with  a  legal  action:  Rusden  v.  Pope,  L.  K. 
3  Ex.  269;  Engleback  v.  Nixon,  L.  E.  10  Com.  P.  645;  Duncan  v. 
Cashin,  L.  R.  10  Com.  P.  554;  Attenborough  v.  London  and  St. 
Katherine's  Dock  Co.,  L.  R.  3  C.  P.  D.  450;  see  Langton  v.  Horton,  3 
Beav.  464.  Analogous  statutes  have  been  passed  in  many  American 
states,  post,  §  61.  For  illustrations  of  relief  against  equitable  claims 
in  interpleader  proceedings  under  these  statutes,  see  Underwood  v. 
Boston  etc.  Bank,  141  Mass.  305,  4  N.  E.  822;  Dixon  v.  National 
L.  L  Co.,  168  Mass.  48,  46  N.  E.  430;  Brierly  v.  Equitable  Aid  Union, 
170  Mass.  218,  64  Am.  St.  Rep.  297,  48  N.  E.  1090;  Windecker  v. 
Mut.  L.  Ins.  Co.,  12  App.  Div.  (N.  Y.)  73,  43  N.  Y.  Supp.  353. 
16  Pom.  Eq.  Jur.,  §  1321. 


§  44  EQUITABLE    EEMEDIES.  72 

ent  liability  to  either  of  the  claimants ;  that  is,  he  must 
stand  perfectly  indifferent  between  them,  in  the  posi- 
tion merely  of  a  stake-holder.  As  the  original  equitable 
jurisdiction  is  founded,  to  a  great  extent,  upon  these 
four  propositions,  I  shall  examine  them  separately."^^ 

§  44.  First:  The  Same  Thing,  Debt,  or  Duty.— "The  same 
thing,  debt,  or  duty  must  be  claimed  by  both  the  parties 
against  whom  the  interpleader  is  demanded.^ ^  This 
requisite  results  from  the  very  nature  and  object  of  the 
remedy.  If  the  subject  in  dispute  has  a  bodily  exist- 
ence,— is  a  thing, — there  can  be  no  doubt  nor  question 
as  to  the  identity.  The  difficulty  in  applying  the  rule 
arises  where  the  subject  is  a  chose  in  action;  and  then 
the  identity  must  be  determined  in  each  particular  case, 
not  by  any  general  rules,  but  by  the  nature,  constitu- 

17  Pom.  Eq.  Jur.,  §  1322.  This  analysis  was  quoted  and  approved 
in  Wells,  Fargo  &  Co.  v.  Miner,  25  Fed.  533,  537,  by  Sawyer,  J.;  in 
Morrill  v.  Manhattan  Life  Ins.  Co.,  82  111.  App.  410,  affirmed  and 
opinion  adopted  183  111.  260,  55  N.  E.  656;  in  Kile  v.  Goodrum,  87 
m  App.  462;  in  Platte  Valley  State  Bank  v.  National  Livestock 
Bank,  54  111.  App,  483,  affirmed  and  opinion  adopted,  155  111.  250,  40 
N.  E.  621;  in  Newman  v.  Commercial  Nat.  Bank,  156  111.  530,  41 
N.  E.  156  (affirming  55  111.  App.  534);  in  Northwestern  Mut.  Life 
Ins.  Co.  V.  Kidder,  162  Ind.  382,  70  N.  E.  489;  and  other  cases;  and 
cited  in  Northwestern  Mut.  Life  Ins.  Co.  v.  Kidder  (Ind.  App.),  69 
N.   E.   204. 

18  Desborough  v.  Harris,  5  De  Gex,  M.  &  G.  439,  455.  See,  also, 
Standley  v.  Eoberts,  59  Fed.  836,  19  TJ.  &.  App.  407,  8  C.  C.  A.  305; 
Eyan  v.  Lamson,  44  111.  App.  204,  affirmed  in  153  111.  520,  39  N.  E. 
!:'79;  Taylor  v.  Satterthwaite,  22  N.  Y.  Supp.  187,  2  Misc.  Eep.  441; 
Heyman  v.  Smadbeck,  27  N.  Y.  Supp.  141,  6  Misc.  Eep.  527;  Travelers' 
Insurance  Co,  v.  Healey,  86  Hun,  524,  33  N.  Y.  Supp.  911;  Dn  Bois 
\.  Union  Dime  Sav,  Inst.,  89  Hun,  382,  35  N.  Y.  Supp.  397,  25  Civ. 
Proc.  E.  288,  2  N.  Y.  Ann,  Cas,  221;  Freda  v.  Montauk  Co.,  55  N.  Y. 
Snpp.  748,  26  Misc.  Eep.  199;  Johnston  v.  Oliver,  51  Ohio  St.  6,  36 
N.  E.  453;  and  additional  cases  cited  in  the  notes  to  this  and  the 
following  paragraphs. 


73  INTERPLEADER.  §  45 

tion,  and  incidents  of  the  debt,  demand,    or   duty  it- 
self."i» 

§  45.  Same;  Claims  of  Different  Amounts. — "In  Glyn  v. 
Duesbury,  11  Sim.  139,  148,  Shadwell,  V.  C,  said: 
*Wliere  the  claims  made  hy  the  defendants  are  of  differ- 
ent amounts,  they  can  never  he  identical;  but  where 
they  are  the  same  in  amount,  that  circumstance  goes 
far  to  determine  their  identity.  The  amount,  however, 
may  not  be  sufficient  of  itself  to  determine  the  identity ; 
for  the  amount  may  be  the  same  and  the  debt  may  be 
different.'  This  dictum  was  approved  in  Pfister  v. 
Wade,  56  Cal.  43.  In  my  opinion,  however,  that  por- 
tion of  the  dictum  which  is  italicized — the  statement 
that  claims  of  different  amounts  can  never  be  identical 
— is  incorrect;  it  seems  alike  opposed  to  principle  and 
to  authority.  Where  both  defendants  claim  one,  sin- 
gle, undivided  deht,  technically  so  called,  the  statement 
is  undoubtedly  true;  a  difference  in  their  amounts 
would  be  fatal  to  their  identity.  But  it  is  clearly  not 
necessarily  so  where  the  claims  are  for  unliquidated 
damages.  Where,  for  example,  a  chattel  is  in  the  plain- 
tiff's hands,  to  which  both  defendants  claim  title,  they 
do  not  sue  to  recover  the  article  itself,  but  allege  a  tech- 
nical conversion,  and  seek  to  recover  damages — the 
value  of  the  chattel.  Here  the  claim  of  the  defendants 
would  not  be  for  a  'thing,'  nor  for  a  'debt,'  but  it  would 
be  for  a  'duty' — a  chose  in  action.  If  each  defendant 
alleged    a  different    value,  and    claimed    a    different 

19  Pom.  Eq.  Jur,,  §  1323,  This  section  of  Pom.  Eq.  Jur.  is  cited 
in  Northwestern  Mut.  Life  Ins.  Co.  v.  Kidder,  1G2  Ind.  382,  70  N.  E. 
489.  See  City  Bank  v.  Bangs,  2  Paige,  570;  Briant  v.  Reed,  14  N.  J. 
Eq.  271;  Dodd  v.  Bellows,  29  N.  J.  Eq.  127;  Leddel's  Exr.  v.  Starr, 
20  N.  J.  Eq.  274;  Salisbury  Mills  v.  Townsend,  109  Mass.  115;  Oil 
Run  Petroleum  Co.  v.  Gale,  6  W.  Va.  525;  Pfister  v.  Wade,  56  Cal 
43;  Blue  v.  Watson,  59  Miss.  619, 


§  45  EQUITABLE    EEMEDIES.  74 

amount  of  damages,  the  duty  asserted  would  still  be 
identically  the  same  in  each  demand.^*^  Another  in- 
stance of  difference  in  the  amounts  claimed  by  the 
different  defendants,  where  the  debt  or  duty  may 
still  be  the  same,  occurs  in  cases  where  a  fund  be- 
ing in  plaintiff's  hands,  the  whole  of  it  is  claimed  by 
one  defendant,  and  parts  of  it  are  claimed  by  the  others. 
With  regard  to  such  cases,  Christiancy,  J.,  said,  in 
School  District  v.  Weston,  31  Mich.  85 :  'Upon  the  great 
weight  of  authority,  both  English  and  American,  a 
much  more  liberal  and  reasonable  rule  has  been  estab- 
lished, and  bills  of  interpleader  have  been  frequently 
maintained,  where  the  several  claimants,  instead  of 
claiming  the  whole  fund  or  matter  in  dispute,  have 
claimed  different  portions  of  the  fund,  when  the  aggre- 
gate of  all  the  claims  exceeded  the  full  amount  of  the 
fund ;  and  the  complainant  being,  as  in  the  present  case, 
virtually  a  stake-holder,  and  unable  to  determine  to 
whom  or  in  what  proportions  the  payments  should  be 
made.'  In  this  case  the  plaintiff  had  let  a  contract 
for  building  a  school-house  for  a  specified  sum  to  a  con- 
tractor, and  portions  of  this  contract  price  were  claimed 
by  subcontractors  and  material-men,  the  total  amount 
of  their  claims  exceeding  the  whole  contract  price."^^ 

20  See,  to  the  same  effect,  Packard  v.  Stevens,  58  N.  J.  Eq.  489, 
46  Atl.  255,  criticising  Glyn  v,  Duesbury. 

21  Pom.  Eq.  Jur.,  §  1323,  note.  See,  also,  as  examples  of  such  par- 
tial claims,  Yates  v.  Tisdale,  3  Edw.  Ch.  71;  Fargo  v.  Arthur,  43 
How.  Pr.  193;  Newhall  v.  Kastens,  70  111.  156;  Board  of  Education 
V.  Scoville,  13  Kan.  17;  Barnes  v.  City  of  New  York,  27  Hun,  236; 
Van  Zandt  v.  Van  Zandt,  7  N.  Y.  Supp.  706,  17  Civ.  Proc.  E.  448; 
Koenig  v.  New  York  Life  Ins.  Co.,  14  N.  Y.  St.  E.  250,  14  Civ.  Proc. 
R.  269.  "Additional  cases  may  be  found  in  the  many  interpleader 
suits  in  this  court,  under  the  mechanics'  lien  act,  when  the  contract 
is  filed,  and  noticing  creditors  and  holders  of  equitable  assignments 
are  brought  in  because  their  claims  upon  the  contract  price  conflict. 
In  these  cases  the  claims  often  vary  widely  in  amount,  and  some- 
times involve  little   other  dispute  than  a  settlement  of  the  order  of 


75  INTERPLEADEK.  §  46 

§  46.  Same;  Illustrations.— "Where  the  same  property 
had  been  taxed  to  the  owner  in  two  counties,  in  some 
cases  for  different  amounts,  in  others  for  the  same 
amount,  a  bill  of  interpleader  by  the  owner  to  deter- 
mine which  of  the  counties  was  entitled  to  the  tax  has 
been  maintained.  It  is  difficult  to  perceive  how  the  tax 
levied  by  two  different  counties,  even  though  the 
amount  of  each  tax  is  the  same,  is  one  and  the  same 
debt  or  duty,  so  as  to  sustain  a  bill  of  interpleader."^^ 

The  question  whether  the  plaintiff  is  liable  for  the 
same  debt,  or  has  incurred  a  double  liability,  has  fre- 
quently arisen  where  a  vendor  seeks  to  interplead  two 
rival  brokers,  both  claiming  commissions  by  reason  of 
the  same  sale  to  the  same  purchaser;"^  and  where  an 
insurance  company  has  issued  a  policy  or  certificate  on 
the  surrender  of  a  previous  policy  or  certificate,  and 

their  priority;  yet,  if  the  situation  be  such  that  the  contract  price 
is  not  enough  to  pay  all,  and  the  owner  may  be  compelled  to  deter- 
mine the  order  of  priority  of  payment,  it  is  common  practice  in  this 
state  to  settle  the  rights  of  all  the  claimants  under  an  interpleader 
bill":  Packard  v.  Stevens,  58  N.  J.  Eq.  489,  46  Atl.  250,  citing 
Trenton  Schools  v.  Heath,  15  N.  J.  Eq.  22;  Wakeman  v.  Kingsland, 
46  N.  J.  Eq,  113,  18  Atl.  680;  Lanigan's  Admr.  v.  Bradley  &  Currier 
Co.,  50  N,  J.  Eq.  202,  24  Atl.  505;  Board  etc.  v.  Duparquet,  50  N.  J. 
Eq.  234,  24  Atl.  922.  But  it  is  to  be  observed,  in  such  cases,  that 
the  claims  must  be  conflicting;  if  there  is  no  doubt  as  to  the  order  of 
their  priority,  there  is  no  ground  for  interpleader:  Ter  Knile  v.  Eed- 
dick   (N.  J.  Eq.),  39  Atl.  1062. 

22  Pom.  Eq.  Jur.,  §  1323,  note.  See  Thompson  v.  Ebbets,  Hopk. 
Ch.  (N.  Y.)  272;  Mohawk  etc.  R.  R.  Co.  v.  Clute,  4  Paige  (N.  Y.), 
384,  391;  Eedfield  v.  Supervisors,  Clarke  Ch.  (N.  Y.)  42;  Dorn  v. 
Fox,  61  N.  Y.  264;  but,  per  contra,  see  Greene  v.  Mumford,  4  R.  I. 
313.  In  Massachusetts,  it  seems  that  such  a  bill  is  demurrable,  but 
has  been  sustained,  neither  party  objecting:  See  Macy  v.  Nantucket, 
121  Mass.  351;  Forest  River  Land  Co.  v.  City  of  Salem,  165  Mass. 
193,  42  N.  E.  802. 

23  See  Shipman  v.  Scott,  12  Civ.  Proc.  Rep.  (N.  Y.)  109,  14  Daly, 
233.  and  Brooke  v.  Smith,  13  Pa.  Co.  Ct.  R.  557,  2  Pa.  Dist.  R.  767, 
33   Wkly.   Not.    Cas.    74,   holding   that   the   debt   was   the   same,   and 


§  46  EQUITABLE    REMEDIES.  76 

seeks  to  interplead  rival  beneficiaries.^*  In  a  recent 
case  of  much  interest  it  was  held  that  interpleader  was 
proper  "when  the  complainant  employs  two  or  more 
persons  to  do  work  upon  a  common  object,  under  an 
agreement  that  each  shall  be  paid  according  to  the 
amount  of  the  work  he  may  separately  do,  to  be  ascer- 
tained by  measurement  when  the  work  shall  be  com- 
pleted, and  without  fault  of  the  complainant  a  confu- 
sion of  the  work  done  arises,  which  prevents  an  ascer- 
tainment of  the  amount  separately  done  by  each,  so  that 
the  complainant  cannot  safely  pay  either."-^ 

"In  other  cases,  one  defendant  claiming  rent  for  cer 
tain  premises,  and  the  other  claiming  damages  for  their 
use  and  occupation,  the  demands  were  held  not  to  be 
the  same.^®  If  the  conflicting  claims  relate  to  a  spe- 
cific 'thing'  in  the  plaintiff's  possession,  the  identity 
is  clear,  and  the  value  alleged  is  immaterial. "^''^ 

awarding  interpleader;  and  McCreery  v.  Inge,  63  N.  Y.  Supp.  158, 
49  App.  Div.  133,  and  Sachsel  v.  Farrer,  35  111.  App.  277,  holding 
that  there  was  a  double  liability. 

24  See  National  Life  Ins.  Co.  v.  Pingrey,  141  Mass.  411,  holding 
that  the  company  could  not  have  an  order  that  the  defendants  inter- 
plead, where  one  important  question  to  be  tried  was  whether,  by 
reason  of  its  own  act,  it  is  under  a  liability  to  each  of  them;  and 
compare  Supreme  Commandery  U.  O.  G.  C.  v.  Merrick,  163  Mass. 
374,  40  N.  E.  183  (distinguishing  the  last  ease  as  one  where  the  con- 
tracts of  insurance  were  independent),  and  McCormick  v.  Supreme 
Council,  39  N.  Y.  Supp.  1010,  6  App.  Div.  175,  where  there  were  two 
outstanding  mutual  benefit  insurance  certificates,  but  only  one  in- 
surance effected  and  one  set  of  premiums  paid,  and  interpleader  was, 
therefore,  awarded. 

25  Packard  v.  Stevens,  58  N.  J.  Eq.  489,  46  Atl.  250. 

26  Pom.  Eq.  Jur.,  §  1323,  note;  Dodd  v.  Bellows,  29  N.  J.  Eq.  127; 
Johnson  v.  Atkinson,  2  Anstr.  798. 

27  Pom.  Eq.  Jur.,  §  1323,  note;  Cady  v.  Potter,  55  Barb.  463.  In 
Lozier's  Exrs.  v.  Van  Saun's  Admrs.,  3  N.  J.  Eq.  325,  a  bill  of  inter- 
pleader was  sustained,  where  the  controversy  was  as  to  which  of  the 
defendants  was  entitled  to  receive  payment  of  certain  notes  made 
by  plaintiff's  testator,  although  the  amount  to  be  paid  was  not  as- 
certained; the  amount,  it  was  held,  could  not  vary  the  rights  of  the 


77  INTERPLEADER.  §  47 

§  47.  Second:  Privity  Between  the  Opposing  Claimants. — 
"A  second  requisite  is,  that  the  adverse  title  of  the 
claimants  must  be  connected,  or  dependent,  or  one  de- 
rived from  the  other,  or  both  derived  from  a  common 
source.  It  is  not  every  instance  of  conflicting  claims 
against  a  person  for  the  same  thing,  debt,  or  duty  which 
will  entitle  him  to  the  remedy  of  an  interpleader. 
Where  there  is  no  privity  betw^een  the  claimants,  where 
their  titles  are  independent,  not  derived  from  a  common 
source,  but  each  asserted  as  wholly  paramount  to  the 
other,  the  stake-holder  is  obliged,  in  the  language  of  the 
authorities,  to  defend  himself  as  w^ell  as  he  can  against 
each  separate  demand ;  a  court  of  equity  will  not  grant 
him  an  interpleader."^^     "This  doctrine,  which  was  left 

claimants.  In  Bassett  v.  Leslie,  123  N.  Y.  396,  25  N.  E.  386,  the 
plaintiff  sought  to  interplead  two  defendants,  both  claiming  the  same 
amount,  but  one.  claiming  for  goods  sold  to  the  plaintiff,  and  the 
ether  claiming  upon  a  draft  accepted  by  the  plaintiff  on  the  under- 
standing that  its  proceeds  should  be  used  in  payment  of  the  debt  for 
the  goods  sold;  it  was  held,  under  the  circumstances  of  the  case,  that 
the  claims  were  not  identical.  Where  A's  claim  against  B  is  for 
the  price  of  goods  sold,  and  C's  claim  is  that  these  goods  were  eon- 
verted  by  A,  the  demands  are  not  so  identical  as  to  warrant  inter- 
pleader on  B's  petition:  Coleman  v.  Chambers,  127  Ala.  615,  29 
Soutji.  58;  Sherman  v.  Partridge,  11  How.  Pr.  (N.  Y.)  154.  It  was 
held  that  where  one  claimant  included  in  his  suit  a  cause  of  action 
with  which  the  other  claimant  had  nothing  to  do,  interpleader  was 
not  proper,  in  Carroll  v.  Demarest,  58  N.  Y.  Supp.  1028,  42  App. 
Div.  155.  That  it  is  incorrect  for  a  plaintiff  to  unite  in  one  suit 
three  different  issues  of  interpleader  between  three  different  groups 
of  parties  merely  because  of  the  similarity  of  the  questions  involved, 
see  Wallace  v.  Sortor,  52  Mich.  159,  17  N.  W.  794,  distinguishing 
School  District  v.  Weston   (for  which  case  see  last  paragraph.) 

28  Pom.  Eq,  Jur.,  §  1324.  This  section  of  Pom.  Eq.  Jur.  is  cited 
with  approval  in  Northwestern  Mut.  Life  Ins.  Co.  v.  Kidder,  162 
Ind  382,  70  N.  E.  489.  See,  also,  Pearson  v.  Cardon,  2  Russ.  &  M. 
606,  609-612;  Crawshay  v.  Thornton,  2  Mylne  &  C.  1,  19-24;  Nickolson 
V.  Knowles,  5  Madd.  47;  Cooper  v.  De  Tastet,  Tarn.  177;  Pfister  v. 
Wade,  56  Cal.  43;  Third  Nat.  Bank  v.  Lumber  Co.,  132  Mass.  410; 
Kyle  y.  Mary  Lee  Coal  &  E.  Co.,  112  Ala.  606,  20  South.  851;  North 


§  47  EQUITABLE    EEMEDIES.  78 

somewhat  doubtful  by  tbe  previous  cases,  was  finally 
settled  by  the  decision  of  Lord  Brougham  in  Pearson  v. 
Cardon,  and  of  Lord  Cottenham  in  Crawshay  v.  Thorn- 
ton. It  finds  its  most  frequent  application  in  cases  of 
a  tenant  interpleading  his  landlord  and  a  third  person 
claiming  under  paramount  title,  of  a  bailee  interplead- 
ing his  bailor  and  an  adverse  claimant  asserting  a  para- 
mount title,  and  of  an  agent  interpleading  his  principal 
and  an  adverse  paramount  claimant.  Examples  of 
these  cases  are  given  in  subsequent  paragraphs.^^ 

"Such  being  the  doctrine,  it  is  a  manifest  imperfection 
of  the  equity  jurisdiction  that  it  should  be  so  limited. 
A  person  may  be,  and  is,  exposed  to  danger,  vexation, 
and  loss  from  conflicting  independent  claims  to  the 
same  thing,  as  well  as  from  claims  which  are  dependent ; 
and  there  is  certainly  nothing  in  the  nature  of  the  rem- 
edy which  need  prevent  it  from  being  extended  to  both 
classes  of  demands."^*^ 

Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  52  Am.  St.  Eep.  780,  42  Pac. 
799;  Hoyt  v.  Gouge  (Iowa),  101  N.  W.  464;  City  of  Montpelier  v. 
Capital  Sav.  Bank,  75  Vt.  433,  98  Am.  St.  Eep.  834,  56  Atl.  89, 
Contra,  see  Boyle  v.  Manion,  74  Miss.  572,  21  South.  530.  For  a  case 
where  privity  between  the  claimants  was  held  to  exist,  see  Fair- 
banks V.  Belknap,  135  Mass.  179,  a  bill  of  interpleader  by  trustees 
for  the  benefit  of  creditors  against,  on  the  one  hand,  certain  cred- 
itors whose  claims  were  subsequent  in  time  to  the  conveyance  to  the 
plaintiffs,  and  who  assert  rights  in  the  property  of  the  debtor  as 
beneficiaries  of  the  trust,  and  ask  its  appropriation  to  the  payment 
of  their  debts;  and^  on  the  other  hand,  against  the  assignees  in  in- 
solvency of  the  debtor,  who  claim  the  debtor's  property,  discharged 
from  any  supposed  trust,  by  virtue  of  the  assignment  in  insolvency. 
In  Packard  v.  Stevens,  58  N.  J.  Eq.  489,  46  Atl.  255,  it  was  held  that 
the  objection  of  lack  of  privity  cannot  be  maintained  where  each 
claimant,  with  the  knowledge  or  assent  of  the  other,  contracted  to 
take  employment  on  the  same  undertaking,  and  for  payment  on  the 
basis  of  the  total  work  done,  and  they  are  in  dispute  as  to  the  amount 
of  work  which  each  contributed  toward  the  total;  though  their  con- 
tracts are  several,  they  are  not  independent. 

29  Pom.  Eq.  Jur.,  §  1324,  note.     See  post,  §§  54,  55. 

30  Pom.  Eq.  Jur.,  §   1324,  note,  quoted  with  approval  in  Crane  v. 


79  INTERPLEADER.  §  43 

§  48.  Third:  Plaintiff  a  Mere  Stake-holder. — "The  per- 
son seeking  the  relief  must  not  have  nor  claim  any  in- 
terest in  the  subject-matter.     He  must  occupy  the  posi- 

McDonald,  118  N.  Y.  648,  657,  23  N.  E.  991.  The  court  in  this  case 
declined  to  decide  whether  the  doctrine  exists  in  New  York,  hold- 
ing that  the  case  under  consideration  fully  met  the  requirements  of 
the  rule,  and  remarking  that  "our  statutory  interpleader  by  order 
apparently  does  not  recognize  the  doctrine."  Professor  Pomeroy 
continues:  "It  is  not  surprising,  therefore,  that  courts  have  some- 
times ignored  this  doctrine  in  their  decisions,  or  have  been  ready 
to  admit  exceptions  to  its  operation.  In  the  common-law  procedure 
act  of  1860,  which  provides  for  a  summary  interpleader  by  motion 
in  legal  actions,  it  was  enacted  that  the  order  of  interpleader  may 
be  made  '  though  the  titles  of  the  claimants  have  not  a  common  or- 
igin, but  are  adverse  to  and  independent  of  each  other.'  In  Atten 
borough  V.  London  etc.  Dock  Co.,  L.  R.  3  C.  P.  D.  450,  which  was 
an  interpleader  proceeding  in  a  legal  action,  the  court  of  appeal  held 
that  the  statute  above  quoted  had  abrogated  this  doctrine  as  laid 
down  in  Crawshay  v.  Thornton,  at  all  events  in  the  proceedings  au- 
thorized by  the  statute.  Bramwell,  L.  J.,  who  was  one  of  the  com- 
missioners who  drew  up  the  statute,  said  (p.  456):  'From  my  own 
knowledge  as  one  of  the  common-law  connuissioners,  I  can  say  that 
it  was  intended  to  do  away  with  the  effect  of  that  decision.'  Bag- 
gallay,  L.  J.,  a  very  eminent  equity  lawyer,  said  (p.  458):  'I  may 
go  further,  and  say  that,  in  my  opinion,  if,  after  the  common-law 
procedure  act  of  1860,  a  bill  of  interpleader  had  been  filed,  raising 
facts  like  those  in  Crawshay  v.  Thornton,  any  judge  of  the  court 
of  chancery  would  have  felt  himself  no  longer  bound  by  the  some- 
what narrow  principle  laid  down  by  Lord  Cottentam,  but  would 
have  acted  upon  the  fuller  powers  contained  in  that  statute.'  The 
Code  of  Civil  Procedure  of  California,  as  lately  amended,  in  section 
386,  goes  even  further,  and  provides  for  an  interpleader,  'although 
the  titles  or  claims  have  not  a  common  origin,  or  are  not  identical.' 
[See  this  section  applied  in  Wells,  Fargo  &  Co.  v.  Miner,  25  Fed. 
533.]  This  last  provision,  that  the  claims  need  not  be  identical, 
is  certainly  unnecessary  and  most  unreasonable;  it  violates  the  whole 
ground  and  reason  upon  which  the  remedy  is  based;  if  interpreted 
literally  by  the  courts,  it  would  remove  almost  every  limitation 
upon  this  kind  of  suit,  and  render  it  a  means  of  vexation  and  an- 
Doyanee.  There  is  no  valid  objection  to  the  requisite  that  the  on- 
posing  claims  should  be  identical;  the  only  question  has  been,  "What 
is  such  identity?  Experience  shows  the  danger  of  legislative  inter- 
meddling with  doctrines  long  settled  and  approved  by  the  consent- 
ing judgments  of  able   courts." 


§  48  EQUITABLE    KEMEDIES.  80 

tion  of  a  stake-bolder.  He  must  stand  entirely  indiffer- 
ent between  tbe  conflicting  claimants,  and  be  ready  and 
willing  to  surrender  tbe  entire  tbing  in  dispute,  or  to 
pay  tbe  entire  debt,  or  render  tbe  entire  duty,  witbout 
any  cbarge,  deduction,  or  commission  as  against  tbe  one 
rigbtfully  entitled.  He  cannot  mingle  up  a  demand 
of  bis  own  upon  tbe  property  or  fund,  witb  tbe  demand 
tbat  tbe  otber  persons  sball  interplead.  As  soon  as 
tbe  decree  is  made  tbat  tbe  defendants  do  interplead, 
and  tbat  be  be  indemnified,  tbe  plaintiff  must  be  wbolly 
witbout  tbe  controversy To  sum  up  tbe  doc- 
trine, tbe  plaintiff  can  only  obtain  tbe  remedy  of 
an  interpleader;  and  tbe  circumstances  must  be  such 
tbat  tbe  entire  rigbts  of  botb  defendants  to  tbe  tbing, 
fund,  debt,  or  duty  can  be  fully  adjusted  and  deter- 
mined in  tbe  one  suit,"^^ 

31  Pom.  Eq.  Jur.,  §  1325;  Mitchell  v.  Hayne,  2  Sim.  &  St.  63; 
Langston  v.  Boylston,  2  Ves.  101;  Moore  v.  Usher,  7  Sim.  383;  Big- 
nold  V.  Aiidland,  11  Sim.  23;  Hoggart  v.  Cutis,  Craig  &  P.  197;  Lin- 
coln V.  Eutland  etc.  E.  R.,  24  Vt.  639;  Atkinson  v.  Manks,  1  Cow. 
691;  Shaw  v.  Coster,  8  Paige,  339,  35  Am,  Dec.  690;  Lozier's  Exrs. 
V.  Van  Saun's  Admrs.,  3  N.  J.  Eq.  325;  Kerr  v.  Union  Bank,  18  Md. 
396;  Burton  v.  Black,  32  Ga.  53;  Adams  v.  Dixon,  19  Ga.  513,  65 
Am.  Dec.  608;  Anderson  v.  Wilkinson,  10  Smodes  &  M.  601;  Cullen 
V.  Dawson,  24  Minn.  66;  Baltimore  etc.  R.  R.  v.  Arthur,  90  N.  Y. 
234;  Stone  v.  Reed,  152  Mass.  179,  25  N.  E.  49;  Blue  v.  Watson,  59 
Miss.  19;  Appeal  of  Bridesburg  Mfg.  Co.,  106  Pa.  St.  275.  See,  also, 
Statham  v.  Hall,  1  Turn.  &  R.  30;  Groves  v.  Sentell,  153  U.  S.  465,  14 
Sup.  Ct.  898,  38  L.  ed.  735;  Crass  v.  Memphis  &  Charleston  R.  R.  Co., 
96  Ala.  447,  11  South.  480,  quoting  and  approving  the  above  text: 
National  Park  Bank  v.  Lanahan,  60  Md.  477;  Chase  v.  Ladd,  155 
Mass.  417,  29  N.  E.  637;  Atkinson  v.  Flannigan,  70  Mich.  639,  38  N. 
W.  655;  Swan  v.  Bartlett,  82  Mo.  App.  642.  See,  also.  Supreme 
Council  of  Legion  of  Honor  v.  Palmer,  107  Mo.  App.  157,  80  S.  W. 
699,  citing  Pom.  Eq.  Jur.;  Holland  Trust  Co.  v.  Sutherland,  177  N. 
Y.  327,  69  N.  E.  647;  Dodge  v.  Lawson,  19  N.  Y.  Supp.  904,  22  Civ. 
Proc.  R.  112;  Barnstein  v.  Hamilton,  49  N.  Y.  Supp.  932,  26  App. 
Div.  206;  Dohnert's  Appeal,  64  Pa.  St.  311;  Wing  v.  Spaulding,  64 
Vt.  83,  23  Atl.  615;   and  see  cases  cited  in  the  following  notes. 

Illustrations. — A  frequent  application  of  the  principle  is  furnished 


SI  INTERPLEADER.  {  49 

§  49.  Same;  Admission  or  Waiver  of  Plaintiff's  Claim; 
Dispute  as  to  His  Liability. — ''While  the  plaintiff  cannot 
set  up  a  claim,  charg(»,  or  lien  upon  the  fund,  which 
shall  enter  into  the  litigation,  and  form  a  part  of  the 
controversy,^ 2  j^  seems  this  rule  is  not  without  excep- 
tions.    It  does  not  apply  where  the  claim  is  admitted 

by  cases  where  the  plaintiff  claims  the  right  to  retain  a  portion  of 
the  fund  in  controversy  as  commission  or  charge  for  his  services  ren- 
dered in  connection  with  the  fund:  See,  for  example,  Mitchell  v. 
Hayne,  2  Sim.  &  St.  63,  where  the  plaintiff,  an  auctioneer,  seekin,?  to 
interplead  a  vendor  and  a  purchaser  who  both  laid  claim  to  a  de- 
posit made  by  the  latter,  asserted  a  right  to  retain  a  portion  of  the 
Bum  as  his  commission;  Baltimore  &  Ohio  R.  R.  Co.  v,  Arthur,  90 
N.  Y.  234,  where  the  plaintiff,  a  vendee  of  merchandise,  seeking  an 
interpleader  of  the  claims  of  his  vendor  and  the  latter 's  receiver, 
attempted  to  reserve  less  than  one  per  cent  of  the  sum  in  controversy 
as  freight  chnrges. 

The  plaintiff,  trustee  of  a  disputed  trust,  is  not  an  indifferent 
stake-holder  if  he  is  entitled  to  a  large  commission  in  case  the  valid- 
ity of  the  trust  is  sustained:  National  Park  Bank  v.  Lanahan,  60 
Md.  477;  compare  Chase  v.  Ladd,  155  Mass.  417,  29  N.  E.  637 
(executor  cannot  maintain  interpleader  to  ascertain  the  respective 
rights  of  defendants  to  property  belonging  to  the  estate  of  the  tes- 
tator, because  of  his  interest  in  the  property;  but  the  bill  may  be 
treated  as  a  petition  for  instructions  in  the  management  of  the 
trust).  The  plaintiff  is  not  an  indifferent  stake-holder  if  he  has  taken 
an  indemnity  from  some  of  the  defendants:  Statham  v.  Hall,  1 
Turn.  &  R,  30;  or  if  one  of  the  claims  is  made  against  him  by  his 
own  procurement:  Swain  v.  Bartlett,  82  Mo.  App.  642.  He  must,  of 
course,  admit  a  liability  to  some  one:  Bernstein  v.  Hamilton,  49  N. 
Y.  Supp.  932,  26  App.  Div.  206.  In  a  strict  bill  of  interpleader,  he 
can  claim  no  further  equitable  relief:  Dohnert's  Appeal,  64  Pa.  St. 
311;  and  see  post,  §  60,  Bills  in  the  Nature  of  Bills  of  Interpleader. 

Since  the  plaintiff's  interest  or  want  of  interest  is  not  a  mere 
formal  matter,  but  goes  to  the  very  right  of  maintaining  the  bill, 
the  objection  on  this  score  may  be  taken  at  the  hearing:  Wing  v. 
Spaulding,  64  Vt.  83,  23  Atl.  615,  relying  on  Toulmin  v.  Reid,  14 
Beav.  499,  Statham  v.  Hall,  1  Turn.  &  R.  30,  Yates  v.  Tisdale,  3  Edw. 
Ch.  71,  and  Mount  Holly  etc.  Turnpike  Co.  v.  Ferree,  17  N.  J.  Eq. 
117. 

3  2  Pom.  Eq.  Jur.,  §  1325,  note;  Wakeman  v.  Dickey,  19  Abb.  Pr. 
(N.  Y.)  124;  Crass  v.  Memphis  &  C.  R.  Co.,  96  Ala.  447,  11  South.  480, 
Equitable  Remedies,  Vol.  I — 6 


i  50  EQUITABLE    EEMEDIES.  82 

by  both  defendants.33  If  the  plaintiff  has  a  claim  or 
charge  on  the  fund,  he  may  waive  it,  and  maintain  the 
suit.^^  It  necessarily  follows  from  the  general  doctrine 
that  if  the  plaintiff  expressly  denies  his  liability  in 
whole  or  in  part  to  one  of  the  defendants,  he  strikes  at 
the  very  foundation  of  the  remedy,  and  shows  that  he 
is  not  indifferent.'"* 

§  50.  Same;  Stake-holder  Must  be  Plaintiff;  Fund  Must  be 
in  His  Custody. — "The  stake-holder — the  person  in  posses- 
sion of  the  thing  or  fund,  or  from  whom  the  debt  or  duty 

holding  that  a  carrier's  lien  for  freight,  the  correctness  of  which 
is  not  assented  to,  cannot  be  litigated  in  a  suit  to  interplead  the  con- 
signee 's  vendor  and  attaching  creditors  of  the  consignee.  See,  alsOj 
cases  in  the  last  note  and  the  following  notes. 

33  Pom.  Eq.  Jur.,  §  1325,  note;  Cotter  v.  Bank  of  England,  2 
Dowl.  Pr.  728;  and  see  Attenborough  v.  London  etc.  Co.,  L.  E.  3  C. 
P.  D.  450;  Gibson  v.  Goldthwaite,  7  Ala.  281,  42  Am.  Dec.  592;  Web- 
ster V.  McDaniel,  2  Del.  Ch.  297.  In  McFadden  v.  Swinerton,  36  Or. 
336,  59  Pac.  816,  62  Pac.  12,  the  claim  of  the  plaintiff,  an  attorney, 
on  the  fund  for  his  fees  did  not  prevent  the  interpleader. 

34  Pom.  Eq.  Jur.,  §  1325,  note;  Jacobson  v.  Blackhurst,  2  Johns. 
&  H.  486;  and  see  Orient  Ins.  Co.  v.  Keed,  81  Cal.  145,  22  Pac.  484. 

35  Pom.  Eq.  Jur.,  §  1325,  note;  Moore  v.  Usher,  7  Sim.  383;  Greene 
V.  Mumford,  4  E.  I.  313;  Patterson  v.  Perry,  14  How.  Pr.  505;  Cogs- 
well V.  Armstrong,  77  111.  139;  Williams  v.  Matthews,  47  N.  J.  Eq. 
196,  20  Atl.  261;  Du  Bois  v.  Union  Dime  Sav.  Inst.,  89  Hun,  382,  35 
N.  Y.  Supp.  397,  25  Civ.  Proc.  Eep.  288,  2  N.  Y.  Ann.  Cas.  221.  A 
denial  not  in  the  complaint  but  made  on  some  previous  occasion,  la 
not  within  this  rule:  Orient  Ins.  Co.  v.  Eeed,  81  Cal.  145,  22  Pac.  484. 
As  to  the  effect  of  a  dispute  or  uncertainty  with  respect  to  the 
amount  of  the  fund  or  debt  for  which  plaintiff  is  liable,  see  City 
Bank  v.  Bangs,  2  Paige,  570;  Consociated  Pres.  Soc.  v.  Staples,  23 
Conn.  544;  Chamberlain  v.  O'Connor,  1  E.  D.  Smith,  665;  Bender  v. 
Sherwood,  15  How.  Pr.  258;  Patterson  v.  Perry,  14  How.  Pr.  505;  Will- 
iams V.  Matthews,  47  N.  J.  Eq.  196,  20  Atl.  261;  Appeal  of  Bridesburg 
Mfg.  Co.,  106  Pa.  St.  275;  Diplock  v.  Hammond,  2  Smale  &  G.  141; 
Southwestern  Tel.  &  T.  Co.  v.  Benson,  63  Ark.  283,  38  S.  W.  341; 
New  England  Mut.  L.  Ins.  Co.  v.  Odell,  50  Hun,  279,  2  N.  Y.  Supp. 
873;  Sibley  v.  Society,  3  N.  Y.  Supp.  8,  15  Civ.  Proc.  Eep.  316,  56  N. 
Y.   Super.   Ct.    (24  J.   &   S.)    274;   Jackson   v.  Knickerbocker  Athletic 


83  INTEEPLEADEB.  §  51 

is  owing,  and  against  whom  two  or  more  conflicting 
claimants  assert  their  demands — must  necessarily  be 
the  plaintiff.  No  interpleader  suit  can  be  maintained 
by  one  of  the  contestants  against  the  other  contestant 
and  the  stake-holder.^^  Furthermore,  the  plaintiff  must 
be  in  possession  of  the  fund,  or  have  it  in  his  custody, 
so  that  he  can  deliver  or  pay  it  in  pursuance  of  the  de- 
cree. If  he  has  already  delivered  the  thing  or  paid  the 
fund  to  one  of  the  contestants,  no  suit  for  interpleader 
can  be  maintained."^' 

§  51.  Same;  Plaintiff  may  have  Interest  in  the  Legal 
Question. — "The  interest,  however,  which  shall  defeat  the 
relief  must  be  in  the  very  thing  or  fund  itself  which  is 
the  subject-matter  of  the  controversy  and  of  the  suit. 
An  interest  in  the  legal  question  at  issue  to  be  deter- 
mined by  the  result  of  the  litigation  will  not  prejudice 
the  plaintiff's  right  to  the  relief.  If,  therefore,  the 
plaintiff  has,  with  respect  to  other  property  not  the 
subject-matter  of  the  present  suit,  an  interest  that  one 
of  the  defendants  shall  succeed,  because  the  decision 
thus  made  will  be  favorable  to  his  own  future  litigation 

Club,  49  App.  Div.  107,  62  N.  Y.  Supp.  1109;  Dodge  v.  Lawson,  19 
N.  Y.  Supp.  904,  22  Civ.  Proc.  Eep.  112.  That  the  defendants  are 
entitled  to  show  that  the  amount  offered  by  the  complainant  is  not 
the  amount  due,  see  Williams  v.  Matthews,  47  N.  J.  Eq.  196,  20  Atl. 
261. 

36  See  Sprague  v.  West,  127  Mass.  471;  Hyman  v.  Cameron,  46 
Miss.  725;  Hathaway  v.  Foy,  40  Mo.  540;  Boyce  v.  Hamilton,  21  Mo. 
App.  520,  525;  Kontjohn  v.  Seimers,  29  Mo.  App.  271;  Am  v.  Arn, 
81  Mo.  App.  133;  Wenstrom  Electric  Co.  v.  Bloomer,  85  Hun,  389, 
32  N.  Y.  Supp.  903. 

37  Pom.  Eq.  Jur.,  §  1325,  note;  Mount  Holly  etc.  Co.  v.  Ferree,  17 
N.  J.  Eq.  117;  Tiernan  v.  Eescaniere's  Admrs.,  10  Gill  &  J.  217;  Vos- 
burg  V.  Huptington,  15  Abb.  Pr.  254;  Martin  v.  Maberry,  1  Dev.  Eq. 
169;  Burnet  v.  Anderson,  1  Mer.  405;  Hechmer  v.  Gilligan,  28  W. 
Va.  750,  25S. 


§  52  EQUITABLE    REMEDIES.  81 

concerning  that  other  property, — this  is  no  objection 
to  his  maintaining  a  suit  for  an  interpleader."^* 

§  52.  Fourth:  No  Independent  Liability  to  One  Claim' 
ant. — "The  party  seeking  the  relief  must  have  incurred 
no  independent  liability  to  either  of  the  claimants. 
Such  an  independent  liability  may  be  incurred  in  two 
classes  of  cases :  1.  In  the  first  place,  the  agent,  depos- 
itary, bailee,  or  other  party  demanding  an  interpleader, 
in  his  dealings  with  one  of  the  claimants,  may  have 
expressly  acknowledged  the  latter's  title,  or  may  have 
bound  himself  by  contract,  so  as  to  render  himself  lia- 
ble upon  such  independent  undertaking,  without  refer- 
ence to  his  possible  liability  to  the  rival  claimant  upon 
the  general  nature  of  the  entire  transaction.  Under 
these  circumstances,  as  the  plaintiff  is  liable  at  all 
events  to  one  of  the  defendants,  whatever  may  be  their 
own  respective  claims  upon  the  subject-matter  as  be- 
tween themselves,  he  cannot  call  upon  these  defendants 
to  interplead.  He  does  not  stand  indifferent  be- 
tween the  claimants,  since  one  of  them  has  a  valid  legal 
demand  against  him  at  all  events.^*     Even  if  the  ac- 

38  Pom.  Eq.  Jur.,  §  1325,  and  note;  Oppenheim  v.  Leo  Wolf,  3 
Sandf.  Ch.  571;  McHenry  v.  Hazard,  45  Barb.  657;  Gibson  v.  Gold- 
thwaite,  7  Ala.  281,  42  Am.  Dec.  592. 

39  Pom.  Eq.  Jur.,  §  1326.  Quoted  in  Atkinson  v.  Carter,  101  Mo. 
App.  477,  74  S.  W,  502;  Newman  v.  Commercial  Nat.  Bank,  156  111. 
530,  41  N.  E.  156  (affirming  55  111.  App.  534).  Cited  to  this  effect  in 
Northwestern  Mut.  Life  Ins.  Co.  v.  Kidder  (Ind.  App.),  69  N.  E. 
204;  S.  C,  162  Ind.  382,  70  N.  E.  489;  Pratt  v.  Worrell  (N.  J. 
Eq.),  57  Atl.  450.  See,  also,  Crawshay  v.  Thornton,  2  Mylne  &  C. 
1,  19-24;  Suart  v.  Welch,  4  Mylne  &  C.  305;  Jew  v.  Wood,  Craia  .f, 
P.  185;  Lindsay  v.  Barron,  60  E.  C.  L.  291;  Patorni  v.  Campbell,  12 
Mees.  &  W.  277;  Standley  v.  Koberts,  59  Fed.  836,  8  C.  C.  A.  305,  19 
U.  S.  App.  407;  Pfister  v.  Wade,  56  Cal.  43;  Tyus  v.  Rust,  37  Ga, 
574,  95  Am.  Dec.  365;  Hatfield  v.  McWhorter,  40  Ga.  269;  CuUen  v. 
Dawson,   24   Minn.   66;    Wakeman   v.   Kingsland,   46    N.   J.   Eq.    113; 


85.  INTERPLEADER.  §  52 

knowledgment  or  promise  has  been  obtained  by  fraud 
or  mistake,  tlie  right  of  the  party  thus  deceived  to  be 

McKinney  v.  Kuhn,  59  Miss.  186  (claimants  have  reduced  their  de- 
mands to  Judgment);  Ter  Knile  v.  Reddick  (N,  J.  Eq.),  39  Atl. 
1062;  Johnston  v.  Oliver,  51  Ohio  St.  6,  36  N.  E.  458;  Connecticut 
Mut.  L.  Ins.  Co.  V.  Tucker,  23  R.  I.  1,  91  Am.  St.  Rep.  590,  49  Atl. 
26;  and  see  cases  cited  below,  and  in  the  following  notes.  As  to  the 
effect  produced  by  the  English  statute  of  1860,  interpreted  by  the 
decision  in  Attenborough  v,  London  etc.  Co.,  L.  R.  3  C.  P.  D.  450, 
and  the  amendment  of  section  386  of  the  California  Code  of  Civil 
Procedure  (applied  in  Wells,  Fargo  &  Co.  v.  Miner,  25  Fed.  533)  see 
ante,  in  note  under  §  47. 

Illustrations. — It  is  held  the  plaintiff  cannot  interplead  the  claim- 
ants after  one  of  them  has  obtained  judgment  upon  his  claim:  Home 
Ins.  Co.  v.  Caulk,  86  Md.  385,  38  Atl.  901;  Baker  v.  Brown,  64  Hun, 
627,  19  N.  Y.  Supp.  258;  Wabash  R.  Co.  v.  Flannigan,  95  Mo. 
App.  477,  75  S.  W.  691.  Where  the  complainant,  a  bailee,  became 
surety  on  the  bond  of  one  of  the  claimants  for  delivery  of  the  chat- 
tels, his  right  to  interpleader  was  defeated:  Kyle  v.  Mary  Lee  Coal  & 
R.  Co.,  112  Ala.  606,  20  South.  851,  quoting  the  above  text.  Where 
money  was  deposited  in  the  N.  bank  (the  plaintiff  and  appellant)  to 
the  credit  of  the  P.  bank,  a  mere  notification  by  the  former  to  the 
latter  of  the  deposit  and  credit,  before  receiving  information  of  a 
rival  claim  to  deposit,  does  not  constitute  an  express  acknowledg- 
ment of  the  P.  bank's  title,  or  an  independent  undertaking,  within 
the  meaning  of  the  text.  "The  liability  of  [the  plaintiff],  what- 
ever and  to  whosoever  it  was,  arose  from  the  act  of  deposit  and  ac- 
ceptance of  the  fund.  It  did  not  spring  from  the  telegram  and 
letter  of  notification.  Such  papers  did  not  constitute  the  contract, 
but  were  mere  evidences  of  it;  neither  did  they  increase  appellant's 
liability  or  affect  it  in  any  way":  Platte  Valley  State  Bank  v.  Na- 
tional Livestock  Assn.,  54  111.  App.  483;  opinion  affirmed  and  adopted, 
155  111.  250,  40  N.  E.  621.  A  written  receipt  by  the  plaintiff,  an  insur- 
ance company,  of  an  assignment  of  the  policy  is  not  an  acknowledg- 
ment of  liability  to  the  assignee:  Morrill  v.  Manhattan  L.  I.  Co.  82 
111.  App.  410;  opinion  affirmed  and  adopted,  183  111.  260,  55  N.  E. 
656.  In  a  case  of  rival  sets  of  beneficiaries,  claiming  under  a  bene- 
fit insurance  certificate,  no  independent  liability  on  the  part  of  the 
company  to  one  set  of  beneficiaries  resulted  from  assessments  and 
dues  paid  by  them,  as  the  payments  were  made  on  behalf  of  tha 
member,  and  under  his  contract  with  the  company:  Supreme  Com- 
mandery,  U.  O.  G.  C.  v.  Merrick,  163  Mass.  374,  40  N.  E.  183. 


§  53  EQUITABLE    REMEDIES.  86 

relieved  in  equity  from  his  liability  cannot  be  consid- 
ered and  sustained  in  an  interpleader  suit."**^ 

"Another  instance  of  the  doctrine  is,  where  the  plain- 
tiff, in  stating  the  case  in  his  bill,  is  obliged  to  admit 
himself  to  be  a  wrong-doer  to  either  one  of  the  defend- 
ants; he  thus  shows  an  independent  liability  to  that 
defendant,  and  is  not  entitled  to  an  interpleader.^^  If 
the  liability  has  been  occasioned  by  some  act  of  the 
plaintiff  himself,  he  is  not  entitled  to  the  remedy."" 

§  53.  Same;  2.  Independent  Liability  Arising  from  Nature 
of  Original  Relation. — ''In  the  second  class  of  cases,  the 
independent  liability  of  the  plaintiff  to  one  of  the  de- 
fendants arises  from  the  very  nature  of  the  original 
relation  subsisting  between  them,  without  reference  to 
any  collateral  acknowledgment  of  title,  or  promise  to 
be  bound.  The  most  important  examples  of  such  re- 
lations are  those  subsisting  between  a  bailee  and  his 
bailor,  an  agent  or  attorney  and  his  principal,  a  ten- 
ant and  his  landlord,  and  the  like.  In  pursuance  of 
the  doctrine  above  stated,  if  a  bailee  is  sued  by  his 
bailor,  or  an  agent  by  his  principal,  or  a  tenant  by  his 
landlord,  and  at  the  same  time  a  third  person  asserts 
a  claim  of  title  adverse  and  paramount  to  that  of  the 
bailor,  principal,  or  landlord,  a    suit    of    interpleader 

40  Pom.  Eq.  Jur.,  §  1326.  See  Mitchell  v.  Northwestern  Mfg.  & 
C.  Co.    26  111.  App.  295  (acknowledgment  obtained  by  mistake). 

41  Pom.  Eq.  Jur.,  §  1326,  note;  Slingsby  v.  Boulton,  1  Ves.  &  B. 
334;  Morgan  v.  Fillmore,  18  Abb.  Pr.  217;  United  States  v.  Vietor, 
16  Abb.  Pr.  153;  Mount  Holly  etc.  Co.  v,  Ferree,  17  N.  J.  Eq.  117; 
Dewey  v.  White,  65  N.  C.  225;  Hatfield  v.  McWhorter,  40  Ga.  269; 
Tyus  V.  Bust,  37  Ga.  574,  95  Am.  Dec.  365;  Coleman  v.  Chambers, 
127  Ala.  615,  29  South.  58;  Dodge  v.  Lawson,  19  N.  Y.  Supp.  904,  22 
Civ.  Proc.  Eep.  112.  See,  also,  Stephenson  v.  Burdett  (W.  Va.),  48 
S.    E.    846. 

42  Pom.  Eq.  Jur.,  §  1326,  note.  See  Desborough  v.  Harris,  5  De 
Gex,  M.  &  G.  439,  455;  Cochrane  v.  O'Brien,  2  Jones  &  L.  380,  8  Ir. 
Eq.  Rep.  241;  Conley  v.  Alabama  Gold  Life  Ins.  Co.,  67  Ala.  472. 


87  INTERPLEADEE.  §  54 

cannot,  in  general,  be  maintained  against  the  two  con- 
flicting claimants,  since,  from  the  very  nature  of  the 
relation,  there  is  an  independent  personal  liability,  with 
respect  to  the  subject-matter,  of  the  bailee  to  his  bailor, 
of  the  agent  to  his  principal,  and  of  the  tenant  to  his 
landlord.^^ 

"The  rule  is  not,  however,  of  universal  application. 
There  are  cases  in  which  a  bailee,  agent,  or  tenant  may 
interplead  his  bailor,  principal,  or  landlord,  and  a  third 
person  setting  up  an  opposing  claim  to  the  thing,  fund, 
or  duty.  These  cases  may  be  described  by  one  general 
formula,  as  those  in  which  the  title  of  the  opposing 
claimant  is  derivative  under,  and  not  antagonistic  and 
paramount  to,  that  of  the  bailor,  principal,  or  landlord. 
An  interpleader  is  allowed  wherever  the  adverse  claim 
originates  from  some  act  of  the  bailor,  principal,  or 
landlord,  done  or  suffered  after  the  commencement  of 
the  bailment,  agency,  or  tenancy,  and  causing  a  dispute 
as  to  which  of  the  parties  is  entitled  to  the  thing,  fund, 
or  duty.  The  claim  of  the  third  person,  instead  of  be- 
ing under  an  independent,  antagonistic,  paramount 
title,  must  be  made  under  a  title  derived  from  that  of 
the  bailor,  principal,  or  landlord;  it  must  acknowledge, 
and  not  deny,  such  original  title."^* 

§  54.  Same;  Bailees  and  Agents.'*^ — «A  bailee  or  agent 
cannot  maintain  an  interpleader  suit  against  the  bailor 
or  the  principal  and  a  third  person  who  asserts  an  inde- 
pendent, antagonistic,  and  paramount  title  to  the 
funds.^^     Nor  can  an  attorney   maintain    such   a  suit 

43  Pom.  Eq.  Jur.,  §  1326. 
4  4  Pom,   Eq.   Jur.,   §   1327. 

45  Pom.  Eq.  Jur.,  §  1327,  note. 

46  Nickolson  v.  Knowles,  5  Madd.  47;  Dixon  v.  Hammond,  2 
Barn.  &  Aid.  310,  313;  Cooper  v.  De  Tastet,  Tam.  177.  181,  182; 
Smith   V.   Hammond,   6   Sim.   10;   Pearson   v.   Cardon,   2  Russ.   &  M. 


§  54  EQUITABLE    EEMEDIES.  88 

against  his  client  and  a  third  person  who  claims  the 
money  which  he  has  collected,  by  an  independent  and 
antagonistic  title.^^  For  the  same  reason,  where  A 
claims  as  legatee  under  a  will,  and  B  claims  the  prop- 
erty by  a  title  paramount  to  that  of  the  testator,  the  ex- 
ecutor cannot  compel  them  to  interplead;  he  is  under 
a  direct  liability  to  the  legatee.^^  On  the  other  hand, 
there  are  cases  in  which  a  bailee  or  an  agent  may  inter- 
plead his  bailor  or  his  principal  with  third  persons 
claiming  adversely.  Wherever  the  third  person  claims 
the  thing,  fund,  debt,  or  duty  from  the  bailee  or  agent 
under  a  title  derived  from  the  bailor  or  the  principal, 
created  by  the  latter's  own  act  subsequently  to  the  bail- 
ment or  agency, — such  as  his  assignment,  agreement, 
sale,  mortgage,  trust,  or  lien  given  by  him, — the  bailee 
or  agent  may  compel  the  parties  to  interplead.     There 

606,   609,   610,   612;    Crawshay   v.   Thornton,   2   Mylne   &   C.   1,   19-24; 

/v.       ^  Cook   V.   Earl   of   Eosslyn,   1   Giff.   167;    Atkinson   v.   Manks,   1   Cow. 
■(\  <J   691,  703-706;  United  States  Trust  Co.  v.  Wiley,  41  Barb.  477;  Lund 

V^sNi  V,  Seamen's  Bank,  37  Barb.  129;  United  States  v.  Vietor,  16  Abb. 
Y^  Pr.  153;  Vosburgh  v.  Huntington,  15  Abb.  Pr.  254;  First  Nat.  Bank 
^  V,  Bininger,  26  N.  J.  Eq.  345;  Tyus  v.  Eust,  37  Ga.  574,  95  Am.  Dec. 
365;  Hatfield  v.  McWhorter,  40  Ga.  269;  Crane  v.  Burntrager,  1  Ind. 
165;  "White  Water  etc.  Co.  v.  Comegys,  2  Ind.  469;  Bartlett  v.  The 
Sultan,  23  Fed.  257;  De  Zouche  v.  Garrison,  140  Pa.  St.  430,  21  Atl. 
450;  Whitbeck  v.  Whiting,  59  111.  App.  520;  Cromwell  v.  American 
L.  &  T.  Co.,  57  Hun,  149,  11  N.  Y.  Supp.  144;  Pacific  Express  Co.  v. 
Williams,  2  Willson  (Tex.)  Civ.  Cas.  Ct.  App.,  §  810. 

Lord  Brougham  declares,  in  Pearson  v.  Cardon,  2  Eusa.  &  M.  606, 
"That  an  agent  should  have  the  power  of  filing  a  bill  of  inter- 
pleader, when  his  principal  demands  the  redelivery  of  his  goods  bailed 
with  him,  appeared  to  me  so  monstrous  a  proposition,  and  to  involve 
such  frightful  consequence  in  mercantile  transactions,  that  I  could 
not  suppose  it  was  meant  to  contend  for  any  such  doctrine.  For,  in 
fact,  it  amounts  to  this:  that  an  agent  may,  at  any  moment,  treat 
his  principal  to  a  chancery  suit,"  etc. 

47  Marvin  v.  Ellwood,  11  Paige,  365;  but  see,  per  contra,  Goddard 
V.  Leech,  Wright,  476. 

48  Adams  v.  Dixon,  19  Ga,  513,  65  Am.  Dec.  608. 


89  INTEEPLEADER.  S  54 

is  in  such  a  case  no  denial  of  the  original  title;  the  only 
dispute  is  concerning  the  effect  of  the  subsequent  act, 
and  as  to  which  of  the  claimants  is  thereby  entitled  to 
the  thing  or  fund.  On  this  general  ground  an  attorney 
may  interplead  his  client  and  a  person  who  sets  up  a 
derivative  claim  from  such  client.^^  And  where  money 
is  in  the  hands  of  an  agent,  and  the  principal  has  cre- 
ated a  lien  or  charge  on  the  fund,  in  favor  of  a  third 
person,  in  respect  to  which  a  controversy  has  arisen,  the 
agent  may  compel  his  principal  and  the  other  claimant 
to  interplead;^"  and  where  the  principal  has  assigned 
the  fund  in  the  agent's  hands,  or  the  bailor  has  trans- 
ferred his  interest  in  the  thing  bailed.^^  For  a  like  rea- 
son an  interpleader  is  permitted  where  a  bailor  or  prin- 
cipal has  given  orders  for  the  property  to  two  different 
persons  who  set  up  conflicting  claims,  since  their  titles 
are  derivative,  and  not  antagonistic.^^  An  interpleader 
by  the  bailee  is  also  allowed  where  a  joint  bailment  has 
been  made,  or  a  transaction  in  the  nature  of  a  joint 
bailment,  to  await  the  happening  of  some  event  or  the 
determination  of  some  dispute.^^  It  should  be  remem- 
bered that  in  all  such  cases  if  the  bailee  or  agent  has 
recognized  the  title  of  the  assignee  or  other  holder  of  a 

49  Gibson  v.  Goldthwaite,  7  Ala.  281,  42  Am.  Dec.  592;  McFadden 
V.  Swinerton,  36  Or.  336,  59  Pac.  816,  62  Pac.  12;  Sammis  v.  L'Engle, 
19  Fla.  800. 

50  Smith  V.  Hammond,  &  Sim.  10;  Wright  v.  Ward,  4  Riiss.  215- 
220. 

51  Crawford  v.  Fisher,  1  Hare,  436,  440;  Smith  v.  Hammond,  6 
Sim.  10;  Wright  v.  Ward,  4  Eiiss.  215-220;  Tanner  v.  European  Bank, 
li.  R.  1  Ex.  261;  Gibson  v.  Goldthwaite,  7  Ala.  281,  42  Am.  Dec.  502. 

62  Pearson  v.  Cardon,  2  Russ.  &  M.  606,  4  Sim.  218;  Atkinson  v. 
Manks,  1  Cow.  691.  The  decision  in  Schuyler  v.  Pelissier,  3  Edw. 
<^h.  191,  goes  too  far. 

53  Suart  V.  Welch,  4  Mylne  &  C.  305;  City  Bank  v.  Skelton,  2 
Elatchf.  14,  Fed.  Cas.  No.  2739;  First  Nat.  Bank  v.  West  River  R.  R., 
46  Vt.  633;  Perkins  v.  Trippe,  40  Ga.  225.  For  special  cases,  see 
Mason  v.  Hamilton,  5  Sim.  19;  Crellin  v.  Levland,  6  Jur.  733. 


§  55  EQUITABLE    EEMEDIES.  90 

derivative  title,  and  has  stipulated  to  hold  the  property 
at  his  disposal,  the  independent  liability  thus  assumed 
will  prevent  the  bailee  or  agent  from  compelling  the 
assignee  to  interplead  with  the  bailor  or  principal  who 
repudiates  the  transaction."^^ 

§  55.  Same;  Tenant  and  Landlord.^s — "The  general  doc- 
trine is  familiar,  that  a  tenant  cannot  deny  his  land- 
lord's title;  he  cannot  therefore  maintain  a  suit  for  in- 
terpleader against  his  landlord  and  a  stranger  who 
claims  under  a  title  antagonistic  and  paramount  to  that 
of  the  lessor.^^  But  the  tenant  is  entitled  to  interplead 
his  landlord  and  an  opposing  claimant  whenever  there 
is  some  privity  between  the  two, — when  the  title  of  the 
other  claimant  is  derivative  from  that  of  the  lessor, — as, 
for  example,  when  the  relation  of  mortgagor  and  mort- 
gagee, trustee  and  cestui  que  trust,  assignor  and  assignee, 
etc.,  has  been  created  between  the  two.  In  such  a  case 
the  tenant  does  not  dispute  his  landlord's  title.^^  So, 
when  both  contestants  claim  under  the  lessor  by  differ- 

64  See  ante,  %  52;  Tyus  v.  Eust,  37  Ga.  574,  95  Am.  Dec.  365;  Hat- 
field V.  McWhorter,  40  Ga.  269;  Horton  v.  Earl  of  Devon,  4  Welsb. 
H.  &  G.  496. 

55  Pom.   Eq.  Jur.,   §   1327,  note. 

56  Dungey  v.  Angove,  2  Ves.  304,  310;  Woolaston  v.  Wright,  3 
Anstr.  801;  Smith  v.  Target,  2  Anstr.  529;  Johnson  v.  Atkinson,  3 
Anstr.  798;  Cook  v.  Earl  of  Eosslyn,  1  Giflf.  137;  Crawshay  v.  Thorn- 
ton, supra;  Seaman  v.  Wright,  12  Abb.  Pr.  304;  Crane  v.  Burntrager, 
1  Ind.  165;  Snodgrass  v.  Butler,  54  Miss.  45;  Standley  v.  Eoberts, 
59  Fed.  836,  8  C.  C.  A.  305,  19  U.  S.  App.  407;  Whitewater  Valley 
etc.  Co.  V.  Comegys,  2  Ind.  469. 

57  Dungey  v.  Angove,  2  Ves.  304,  310,  312;  Metcalf  v.  Hervey,  1 
Ves.  Sr.  248;  Cowtan  v.  Williams,  9  Ves.  107;  Clarke  v.  Byne,  13 
Ves.  383;  Johnson  v.  Atkinson,  3  Anstr.  798;  Seaman  v.  Wright,  12 
Abb.  Pr.  304;  Snodgrass  v.  Butler,  54  Miss.  45;  Oil  Eun  Petro.Co. 
T.  Gale,  6  W.  Va.  525;  Ketcham  v.  Brazil  Block  Coal  Co.,  88  Ind.  515; 
Van  Zandt  v.  Van  Zandt,  7  N.  Y.  Supp.  706,  17  Civ.  Proc.  Eep.  448; 
McCoy  V.  McMurtrie,  12  Phila.  180  (mortgagor  and  mortgagee). 


91  INTERPLEADER.  S  56 

ent  titles;  for  example,  one  as  heir  and   the  other   as 
devisee."^^ 

§  56.  Same ;  Parties  to  Contracts.^^ — "As  a  general  rule, 
where  A  and  B  are  bound  by  express  contract,  A  cannot 
maintain  an  interpleader  suit  against  B  or  a  person 
holding  or  claiming  under  him,  and  a  stranger  who  as- 
serts and  claims  under  an  antagonistic  and  paramount 
title.  A  is  under  an  independent  liability  to  B.^°  For 
example,  a  vendee  of  real  or  personal  property,  with  re- 
spect to  his  liability  to  pay  the  purchase  price,  cannot 
interplead  his  vendor  and  a  third  person  claiming  to 
own  the  property  by  an  independent  antagonistic  title.^^ 
On  the  other  hand,  as  in  cases  of  bailees,  agents,  and 
tenants,  a  party  to  a  contract  may  interplead  his  co- 
contractor  and  other  persons  in  privity  with  him,  or 
distinct  claimants  all  of  whom  are  in  privity  with  his 
co-contractor, — that  is,  may  interplead  his  co-contractor 
and  persons  who  derive  their  title  under  him,  or  several 
claimants  all  of  whom  thus  hold  by  derivative  title.^^ 
As  example:  A  vendee  may  interplead  his  vendor  and 
an  attaching  creditor  of  A,  alleged  to  be  the  real  owner,, 
the  sale  being  alleged  to  have  been  really  made  by  the 
vendor  as  A's  agent.^^    One  owing  a  sum  of  monev  un- 


'& 


58  Jew  V.  Wood,  3  Beav.  579;  Badeau  v.  Tylee,  1  Sandf.  Ch.  270; 
Glaser  v.  Priest,  29  Mo.  App.  1. 

59  Pom.  Eq.  Jur.,  §   1327,  note. 

60  Ante,  §  52. 

61  Quoted  in  Northwestern  Mut.  Life  Ins.  Co.  v.  Kidder,  162  Ind. 
382,  70  N.  E.  489.  See,  also,  James  v.  Pritchard,  7  Mees.  &  W.  216; 
Trigg  V.  Hitz,  17  Abb.  Pr.  436;  Shehan's  Heirs  v.  Barnett's  Heirs,  6 
T.  B.  Mon.  592;  Tynan  v.  Cadenas,  7  Civ.  Proc.  Rep,  (N.  Y.)  305 
(no  interpleader  by  vendee  of  goods  against  persons  each  of  whom 
claim  to  have  sold  him  the  goods). 

62  Bechtel  v.  Sheafer,  117  Pa.  St.  555,  562,  11  Atl.  889. 

63  Richards  v.  Salter,  6  Johns.  Ch.  445;  Johnston  v.  Lewis,  4  Abb. 
Pr.,  N.  S.,  150. 


§  56  EQUITABLE    EEMEDIES,  92 

der  a  contract  may  interplead  the  legal  assignee  of  his 
co-contractor,  and  one  claiming  the  fund  either  by  equi- 
table assignment  from  the  co-contractor  or  by  attach- 
ment levied  upon  the  fund.^^  A  vendor  of  land  may 
interplead  the  husband  of  the  deceased  vendee  and  her 
heirs,  where  both  claimed  to  be  entitled  to  a  convey- 
ance.^^ Insurance  companies  may  compel  opposing 
claimants  of  the  insurance  money  to  interplead  when 
they  claim  by  assignment  from  the  assured,  or  by  mort- 
gage, or  by  attachment,  etc. — that  is,  when  they  claim 
derivatively.^^  On  like  ground,  corporations  may  in- 
terplead opposing  claimants  of  stock  or  dividends, 
whose  titles  are  derivative  from  a  stockholder,  by  as- 
signment, execution,  attachment,  trust,  etc.^'  A  maker 
of  a  note  may  compel  claimants  holding  under  the  payee 
by  derivative  title  to  interplead ;  for  example,  an  attach- 
ing creditor  of  payee  and  an  assignee  ;^^  the  adminis- 
trator of  a  deceased  guardian  to  whom  the  note  was 
made  payable,  and  a  new  guardian  appointed  in  place 

64  Crane  v.  McDonald,  118  N.  Y.  648,  23  N.  E.  991.  The  titles  of 
both  defendants  were  plainly  derivative. 

65  Farley  v.  Blood,  30  N.  H.  354. 

66  Nelson  v.  Barter,  2  Hem.  &  M.  334;  Hamilton  v.  Marks,  5  De 
Gex  &  S.  638;  Spring  v.  South  Carolina  Ins.  Co.,  8  Wheat.  268,  5  L. 
ed.  614;  Prudential  Assur.  Co.  v.  Thomas,  L.  E.  3  Ch.  74;  Aetna  Nat. 
Bank  v.  United  States  L.  Ins.  Co.,  25  Fed.  531;  Heusner  v.  Mutual 
Life  Ins.  Co.,  47  Mo.  App.  336;  Supreme  Conclave  I.  O.  H.  v.  Dailey, 
61  N.  J.  Eq.  145,  47  Atl.  277  (interpleader  by  a  benefit  society); 
Grill  V.  Globe  &  E.  F.  I.  Co.,  67  N.  Y.  Supp.  253,  55  App.  Div.  612, 
citing  Bacon  v.  Surety  Co.,  65  N.  Y.  Supp.  738,  53  App.  Div.  150,  and 
Woolworth  V.  Insurance  Co.,  49  N.  Y.  Supp.  512,  25  App.  Div.  629. 

67  Salisbury  Mills  v.  Townsend,  109  Mass.  115;  Providence  Bank 
v.  Wilkinson,  4  E.  I.  507,  70  Am.  Dec.  160;  Cady  v.  Potter,  55  Barb. 
463;  American  Press  Association  v.  Brantingham,  68  N.  Y.  Supp. 
285,  57  App.  Div.  399.  See  Cheever  v.  Hodgson,  9  Mo.  App.  565; 
Bruggeman  v.  Bank,  1  City  Ct.  E.  (N.  Y.)  86  (rival  claimants  to  a 
certified  check). 

68  Briant  v.  Eeed,  14  N.  J.  Eq.  271;  Bryan  v.  Salterstall,  3  J.  J. 
Marsh.  672;  Fabie  v.  Lindsay,  8  Or.  474. 


93  1jS'TERPL,EADEB.  §  57 

of  the  one  deceased."^*  A  very  common  class  of  inter- 
pleader suits  is  that  where  a  bank,  holding  the  relation 
of  debtor  to  its  depositor,  interpleads  the  depositor  and 
one  claiming  under  him,  or  two  opposing  claimants  un- 
der the  same  dei)ositorJ*^ 

§  57.  Same;  by  Receiver;  by  Master  of  a  Vessel;  by  Sher- 
iff,7i — uj^  receiver  has  been  held  entitled  to  interplead 
opposing  claimants  of  the  fund  in  his  handsJ^  (Quaere, 
would  not  the  court  direct  the  proper  distribution  of 
the  fund  by  the  receiver?)  Where  suits  by  persons  claim- 
ing to  be  owners  of  the  cargo  are  instituted  in  admiralty 
against  a  ship,  causing  her  arrest,  the  master  cannot 
maintain  interpleader  against  these  claimants,  because 
— 1.  The  claims  are  not  against  him,  but  against  the 
ship;  and  2.  The  court  of  admiralty  has  full  jurisdic- 
tion to  settle  all  the  questionsJ^  Independently  of 
statute,  it  has  generally  been  held  that  a  sheriff  levying 
on  goods  by  execution  against  A,  which  are  claimed  by 
B  to  be  his  property,  cannot  compel  the  execution  cred- 

69  Van  Buskirk  v.  Roy,  8  How.  Pr.  425. 

70  See  Platte  Valley  State  Bank  v.  National  Livestock  Bank, 
54  111.  App.  483,  affirmed  and  opinion  adopted,  155  111.  250,  40  N.  E. 
621;  People's  Savings  Bank  v.  Look,  95  Mich.  7,  54  N.  W,  629;  Ger- 
man Exchange  Bank  v.  Commissioners,  6  Abb.  N.  C.  (N.  Y.)  394; 
Smith  v.  Emigrant  Industrial  Sav.  Bank,  17  N.  Y.  St.  Eep.  852,  2 
N.  Y.  Supp.  617.  See  Hasten  v.  Bowery  Sav.  Bank,  63  N.  Y.  Supp. 
964,  31  Misc.  Eep.  178  (no  interpleads  when,  by  statute,  a  draft  does 
not  constitute  an  equitable  assignment).  If  one  of  the  claimants  as- 
serts a  title  superior  to  that  of  the  depositor,  interpleader  is  not 
allowed:  Third  National  Bank  v.  Skillings  Lumber  Co.,  132  Mass. 
410  (claimant  asserts  that  depositor  was  its  agent,  and  that  the 
draft  deposited  was  its  property);  Gorman  Sav.  Bank  v.  Friend,  61 
N.  Y.  Super.  Ct.  (29  J.  &  S.)  400,  20  N.  Y.  Supp.  434. 

71  Pom.  Eq.  Jur.,  §  1327,  note. 

72  Winfield  v.  Bacon,  24  Barb.  154. 

73  Sablicich  v.  Eussell,  L.  E,  2  Eq.  441. 


§  58  EQUITABLE    REMEDIES.  94 

itor  and  B  to  interplead.'^*  Nor  can  the  sheriff  compel 
the  opposing  claimants  of  a  surplus  in  his  hands  after 
satisfying  an  execution  to  interplead ;  such  claims  can 
be  adjusted  by  the  courts.''^  Statutes  in  England  and 
in  many  of  the  states  have  authorized  the  sheriff  to  in- 
terplead the  claimants  of  property  seized  by  him  under 
process." 

§  58.  Requisites  of  the  Bill  or  ComplaintJ^ — "The  bill 
of  complaint  must  contain  allegations  which  show  that 
all  of  the  requisites  entitling  the  plaintiff  to  the  rem- 
edy exist  in  the  case.  It  must  allege  positively  that 
conflicting  claims  to  substantially  the  same  thing,  fund, 
debt,  or  duty  are  set  up  by  the  defendants;  that  plain- 
tiff claims  no  interest  in  the  subject-matter;  that  he  is 
indifferent  between  the  claimants,  and  is  ready  and  will- 
ing to  deliver  the  thing  or  fund,  or  pay  the  debt,  or  ren- 
der the  duty  to  the  rightful  claimant,  but  that  he  is 
ignorant  or  in  doubt  which  is  the  rightful  one,  and  is  in 
a  real  danger  or  hazard  by  means  of  such  doubt,  from 
their  conflicting  demands. '^'^     The  bill  need  not  show 

74  Slingsby  v.  Boulton,  1  Ves.  &  B.  334;  Shaw  v.  Coster,  8  Paige, 
339,  35  Am.  Dec.  690;  S.  C,  sub  nom.  Shaw  v.  Chester,  2  Edw.  Ch. 
405;  Quinn  v.  Green,  1  Ired.  Eq.  229,  36  Am.  Dec.  46;  Quinn  v.  Pat- 
ton,  2  Ired.  Eq.  48;  Dewey  v.  White,  65  N.  C.  225. 

75  Parker  v.  Barker,  42  N.  H.  78,  77  Am.  Dec.  789;  McDonald  v. 
Allen,  37  Wis.  108,  19  Am.  Rep.  754.     But  see  Kring  v.  Green's  Exrs., 

10  Mo.  195;  Lawson  v.  Jordan,  19  Ark.  297,  70  Am.  Dec.  596;  Child 
V.  Mann,  L.  R.  3  Eq.  806. 

76  Pom.  Eq.  Jur.,  §  1328,  and  notes. 

77  Farley  v.  Blood,  30  N,  H.  354;  Parker  v.  Barker,  42  N.  H.  78, 
77  Am.  Dec.  789;  Atkinson  v.  Manks,  1  Cow.  691;  Wilson  v.  Duncan, 

11  Abb.  Pr.  3;  Lozier's  Exrs.  v.  Van  Saun's  Admrs.,  3  N.  J.  Eq.  325; 
Eriant  v.  Reed,  14  N.  J.  Eq.  271;  Snodgrass  v.  Butler,  54  Miss.  45; 
Starling  v.  Brown,  7  Bush,  164;  State  Ins.  Co,  v.  Gennett,  2  Tenn. 
Ch.  82;  Pfister  v.  Wade,  56  Cal.  43;  Killian  v.  Ebbinghaus,  110  U.  S. 
568,  4  Sup.  Ct.  Rep.  232,  28  L.  ed.  246;  Crane  v,  McDonald,  118 
N.  T.  648,  654,  23  N.  E.  991;  Stone  v.  Reed,  152  Mass.  179,  25  N.  E. 


95  INTERPLEADER.  §  58 

an  apparent  title  in  either  of  the  defendantsJ^  On  the 
contrary,  if  the  bill  should  show  that  plaintiff  was  fully 
informed  of  the  defendants'  rights  and  of  his  own  lia- 
bility, or  if  it  should  show  that  one  of  the  defendants 
was  certainly  entitled,  on  the  facts  alleged,  to  the  thing, 
debt,  or  duty,  in  either  case  it  would  be  demurrable; 
there  would  be  no  ground  for  an  interpleader.'"* 

49;  Sullivan  v.  Knights  of  F,  M.,  73  Mo.  App.  43;  Funk  v.  Thomasson, 
84  Mo.  App.  490;  North  Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  52 
Am.  St.  Rep.  780,  42  Pac.  799.  "The  material  allegations  in  a  bill 
of  interpleader  ....  are:  (1)  That  two  or  more  persons  have  pre- 
ferred a  claim  against  the  complainant;  (2)  that  they  claim  the  same 
thing;  (3)  that  the  complainant  has  no  beneficial  interest  in  the  thing 
claimed;  and  (4)  that  he  cannot  determine  without  hazard  to  himself, 
to  which  of  the  defendants  the  thing  belongs":  Crane  v.  McDonald, 
118  N.  Y.  648,  654,  23  N.  E.  991;  Atkinson  v.  Manks,  1  Cow.  (N.  Y.) 
691,  703.  The  claims  should  be  sufficiently  set  forth  to  enable  the 
court  to  determine  whether  it  is  doubtful  or  dangerous  for  the  plain- 
tiff to  act:  National  Bank  of  Augusta  v.  Augusta  etc.  Co.,  99  Ga. 
236,  25  S.  E.  686;  sufficiently  to  give  a  color  of  right  to  each  of  the 
defendants:  Robards  v.  Clayton,  48  Mo.  App.  60S;  specifically,  so  that 
they  may  appear  to  be  of  the  same  nature  and  character,  and  the 
fit  subject  for  a  bill  of  interpleader:  Varrien  v.  Berrien,  42  N.  J.  Eq. 
],  10*  Atl.  875;  Connecticut  Mut.  Life  Ins.  Co.  v.  Lea,  7  Ohio  N.  P. 
399,  10  Ohio  S.  &  C.  P.  Dec.  39.  As  to  what  is  a  sufficiently  specific 
description  of  the  claims,  see,  also.  Crane  v.  McDonald,  118  N.  Y. 
648,  23  N.  E.  991.  As  to  proof  of  the  claims,  it  is  held  that  the 
answers  of  the  defendants  may  be  read  against  each  other  to  es- 
tablish the  fact  that  each  makes  claim  to  the  fund,  and  further 
proof  of  that  fact  is  not  necessary:  Morrill  v.  Manhattan  L.  I.  Co., 
183  111.  260,  55  N.  E.  656,  affirming  and  adopting  opinion  in  82  III. 
App.  410;  Balchen  v.  Crawford,  1  Sandf.  Ch.  (N.  Y.)  380.  That  the 
bill  must  contain  averments  showing  privity  between  the  claimants, 
see  Kyle  v.  Mary  Lee  Coal  &  R.  Co.,  112  Ala.  606,  20  South.  851. 

78  East  &  W.  Ind.  Dock  Co.  v.  Littledale,  7  Hare,  57;  Pfister  v.  Wade, 
56  Cal.  43;  Supreme  Lodge  O.  M.  P.  v.  Raddatz,  57  111.  App.  119; 
Stewart  v.  Fallon  (N.  J.  Eq.),  58  Atl.  96. 

79  Parker  v.  Barker,  42  N.  H.  78,  77  Am.  Dec.  789;  Mohawk  etc. 
R.  R.  V.  Clute,  4  Paige,  384;  Morgan  v.  Fillmore,  18  Abb.  Pr.  217; 
Wilson  V.  Dnncan,  11  Abb.  Pr.  3;  Briant  v.  Reed,  14  N.  J.  Eq.  271; 
Barker  v.  Swain,  4  Jones  Eq.  220;  Bassett  v.  Leslie,  123  N.  Y.  396, 
15  N.  E.  386;  Pusey  &  Jones  Co.  v.  Miller,  61  Fed.  401;  Sugar  Co.  v. 


§  59  EQUITABLE    EEMEDIES.  96 

§  59.  Affidavit  of  Non-collusion;  Payment  into  Court; 
Costs. — "It  is  the  settled  practice  that  the  bill  of  com- 
plaint must  be  accompanied  by  an  affidavit  of  the  plain- 
tiff, stating  that  the  suit  is  not  brought  in  collusion 
with  either  of  the  defendants ;  and  the  omission  of  such 
affidavit  may  generally  be  taken  advantage  of  by  de- 
murrer.^*^     The  plaintiff  must  also  bring  or  pay,  or  offer 

Alterger,  22  Hun,  349,  353;  Shaw  v.  Coster,  8  Paige,  339,  35  Am. 
Dec.  690  (both  defendants  may  demur).  "When,  from  complainant's 
own  showing,  there  can  be  no  doubt  in  the  case,  the  party  entitled 
to  the  debt  or  duty  claimed  is  not  to  be  subjected  to  the  delay  and 
expense  of  a  chancery  suit":  Crass  v.  Memphis  &  C.  R.  Co.,  96  Ala. 
•447,  11  South.  480.  "If  the  plaintiff  denies  his  liability  to  either 
of  the  defendants,  he  is  not  entitled  to  the  remedy;  he  destroys  the 
very  foundation  on  which  it  rests:  McHenry  v.  Hazard,  45  Barb, 
657,  45  N.  Y.  580  [Southwark  Nat.  Bank  v.  Childs,  57  N.  Y.  Supp. 
789,  39  App.  Div.  560;  ante,  §  49].  If  the  bill  is  taken  as  confessed 
by  one  of  the  conflicting  defendants,  the  fund  indisputably  belongs 
to  the  other.  And  where  in  such  a  case  a  stranger  was  afterwards 
admitted  by  the  lower  court,  on  petition,  to  contest  the  interest  of  the 
remaining  defendant,  it  was  held  on  appeal  that  there  was  no  prac- 
tice allowing  a  third  person  thus  to  come  into  the  cause  by  petition; 
that  the  bill  could  not  be  amended  to  reach  him,  as  it  was  filed  to 
guard  against  known  claims;  the  order  that  the  remaining  defendant 
and  the  third  person  should  interplead  was  irregular:  Michigan  etc. 
Co.  V,  "White,  44  Mich.  25,  5  N.  W.  1086.  {Quaere,  would  such  a  pro- 
ceeding be  allowed  under  the  provisions  of  the  Iowa  and  California 
codes  permitting  Intervention?)"   Pom.   Eq.  Jur.,   §   1328,   note. 

80  Hamilton  v.  Marks,  5  De  Gex  &  S.  638;  Farley  v.  Blood,  30  N. 
H.  354;  Atkinson  v.  Manks,  1  Cow.  691;  Beck  v.  Stephani,  9  How. 
Pr.  193;  Mount  Holly  etc.  Co.  v.  Ferree,  17  N.  J.  Eq.  117;  Tyus  v. 
Eust,  37  Ga.  574,  95  Am.  Dec.  365;  Snodgrass  v.  Butler,  54  Miss.  45; 
Starling  v.  Brown,  7  Bush,  164;  Biggs  v.  Kouns,  7  Dana,  405,  411; 
Blue  V.  Watson,  59  Miss.  619;  Ammendale  Norm.  Inst.  v.  Anderson, 
71  Md.  128,  17  Atl.  1030;  Home  Ins.  Co.  v.  Caulk,  86  Md.  385,  38  Atl. 
901;  Bliss  v.  French,  117  Mich.  538,  76  N.  W.  73;  but  a  contrary 
practice  seems  to  prevail  in  Connecticut:  Consociated  Pres.  Soc,  v. 
Staples,  23  Conn.  544,  555;  Nash  v.  Smith,  6  Conn.  421;  and  in  Indiana 
the  absence  of  the  affidavit  is  not  a  ground  of  demurrer  under  the 
code,  since  demurrers  under  the  code  can  be  sustained  for  specified 
causes  only,  and  the  want  of  verification  of  a  pleading  is  not  one 
of  them:  Nof singer  v.  Eeynolds,  52  Ind.  218,  224;   while  in  Oregon 


97  INTERPLEADER.  §  59 

to  bring  or  pay,  the  entire  thing,  fund,  or  money  in  con- 
troversy into  court;  an  omission  to  do  so  renders  the  bill 
demurrable.^^  If  the  bill  was  properly  filed,  and  if  the 
plaintiff  has  acted  in  good  faith,  he  is  generally  entitled 
to  his  costs  out  of  the  fund  in  controversy,  which  costs, 
as  between  the  defendants,  must  ultimately  be  paid  by 
the  unsuccessful  party."^^ 

it  is  "perhaps  sufficient  under  code  practice  that  the  fact  [of  non- 
collusion]  appear  by  appropriate  allegations  in  the  complaint":  North 
Pacific  Lumber  Co.  v.  Lang,  28  Or.  246,  52  Am.  St.  Rep.  780,  42  Pac. 
799.  The  plaintiff's  affidavit  is  conclusive;  defendants  cannot  contra- 
dict it,  even  though  the  plaintiff  has  filed  supplemental  affidavits: 
Manby  v.  Robinson,  L.  R.  4  Ch.  347;  Langston  v.  Boylston,  2  Ves. 
101;  Slo'.enson  v.  Anderson,  2  Ves.  &  B.  407;  and  see  Fahie  v.  Lind- 
say, 8  Or.  474.  If  collusion  appears  on  the  face  of  the  bill,  relief 
will,  of  course,  be  denied:  Marvin  v.  EUwood,  11  Paige,  365;  Kerr 
V.  Union  Bank,  18  Md.  396;  Williams  v.  Halbert,  7  B.  Mon.  184. 
Pom.  Eq.  Jur.,  §   1328,  and  note. 

81  The  whole  fund  must  be  put  at  the  disposal  of  the  court;  an 
offer  to  bring  in  what  may  be  found  due  is  not  sufficient:  Mohawk 
etc.  R.  R.  V.  Clute,  4  Paige,  384;  Atkinson  v.  Manks,  1  Cow.  691; 
Williams  v.  Walker,  2  Rich.  Eq.  291,  46  Am.  Dec.  53;  Snodgrass  v. 
Butler,  54  Miss.  45;  McGarrah  v.  Prather,  1  Blackf.  299;  Starling  v. 
Brown,  7  Bush,  164;  Ammendale  Norm.  Inst,  v,  Anderson,  71  MJ. 
128,  17  Atl.  1030;  Home  Ins.  Co.  v.  Caulk,  86  Md.  385,  38  Atl.  901; 
Barroll  v.  Foreman,  86  Md.  675,  39  Atl.  273  ("this  offer  is  required 
to  prevent  an  abuse  of  this  proceeding,  just  as  the  affidavit  that 
there  is  no  collusion");  Bliss  v.  French,  117  Mich.  538,  76  N.  W.  73. 
Contra,  as  to  the  omission  being  a  ground  for  demurrer.  Blue  v. 
Watson,  59  Miss.  619;  Manx  v.  Bell,  6  Sim.  175.  It  seems  that  if  the 
petition  contains  such  offer,  actual  payment  of  the  fund  into  court  is 
not  a  condition  precedent  to  an  order  of  interpleader:  Barnes  v. 
Bamberger,  196  Pa.  St.  123,  46  Atl.  303.  It  was  held  in  Farley  v. 
Blood,  30  N.  H.  354,  that  in  a  suit  concerning  the  defendants'  rights 
to  a  conveyance  under  a  land  contract,  the  plaintiff  must  offer  to 
convey,  and  must  have  the  deeds  executed  ready  for  delivery.  Pom. 
Eq.  Jur.,   §   1328,   and  note. 

8  2  See  Laing  v.  Zeden,  L.  R.  9  Ch,  736;  Aldridge  v,  Thompson, 
2  Brown  Ch.  149;  Cowtan  v.  Williams,  9  Yes,  107;  Farley  v.  Blood, 
30  N.  H.  354;  Manchester  Print  Works  v.  Stimson,  2  R.  I.  415;  Atkin- 
son V.  Manks,  1  Cow.  691;  Canfield  v.  Morgan,  Hopk.  Ch.  224;  Aymer 
V.  Gault,  2  Paige,  284;  Badeau  v.  Rogers,  2  Paige,  209;  Spring  v. 
Equitable  Remedies,  Vol.  1—7 


§  60  EQUITABLE    EEMEDIES.  98 

§  60.  Bill  in  the  Nature  of  a  Bill  of  Interpleader. — A  bill 
in  the  nature  of  a  bill  of  interpleader  is  one  in  which 
the  complainant  seeks  some  relief  of  an  equitable  nature 
concerning  the  fund  or  other  subject-matter  in  dispute, 
in  addition  to  the  interpleader  of  conflicting  claimants. 
The  complainant  is  not  required,  as  in  strict  inter- 
pleader, to  be  an  indifferent  stake-holder,  without  in- 
terest in  the  subject-matter.^^  It  is  essential,  however, 
that  the  facts  on  which  he  relies  entitle  him  to  equi- 
table, as  distinguished  from  legal,  relief;  he  is  not  per- 
mitted, under  the  guise  of  a  bill  in  equity,  to  litigate 
a  purely  legal  claim  or  interest  in  the  subject-matter.^'* 
The  additional  relief  most  frequently  granted  is  the  re- 
demption of  a  mortgage  or  other  encumbrance  on  prop- 
South  Carolina  Ins.  Co.,  8  Wheat.  268,  5  L.  ed.  614;  Long  v.  Superior 
Court,  127  Cal.  686,  60  Pac.  464;  Glaser  v.  Priest,  29  Mo.  App.  1. 
That  the  complainant  is  entitled  to  reasonable  attorney's  fees,  see 
Louisiana  State  Lottery  Co.  v.  Clark,  16  Fed.  20,  4  Woods,  169; 
Franco-American  L.  &  B.  Assn.  v.  Joy,  56  Mo.  App.  433;  Christian 
V.  National  L.  I.  Co.,  62  Mo.  App,  35;  Supreme  Council  Legion  of 
Honor  v.  Palmer,  107  Mo.  App.  157,  80  S.  W.  699;  but  see  contra, 
Helmken  v.  Meyer  (Ga.),  45  S.  E.  450.  If  the  decree  is  irregular  in 
not  directing  payment  into  court  and  plaintiff's  discharge,  the  plain- 
tiff should  not  have  costs  out  of  the  fund:  Gardiner  Sav.  Inst.  v. 
Emerson,  91  Me.  535,  40  Atl.  551.  As  in  all  equity  suits,  costs  are 
within  the  discretion  of  the  court,  and  depend  somewhat  upon  the 
circumstances  of  each   case.   Pom.  Eq.  Jur.,  §   1328,  and  note. 

83  Nof singer  v.  Eeynolds,  52  Ind.  218;  Van  Winkle  v.  Owen,  54 
N.  J.  Eq.  253,  34  Atl.  400,  and  cases  cited  in  following  notes.  That, 
aside  from  the  plaintiff's  interest  in  the  subject-matter,  the  bill  is 
governed  by  the  same  principles  as  the  strict  bill  of  interpleader,  see 
Stephenson  v.  Burdett  (W.  Va.),  48  S.  E.  846  (reviewing  many  cases); 
but  that  the  affidavit  of  non-collusion  is  not  required,  see  Koppinger 
V.  O'Donnell,  16  E.  I,  417,  16  Atl.  714;  Van  Winkle  v.  Owen,  56  N. 
J.  Eq.  253,  34  Atl.  400. 

84  Killian  v.  Ebbinghaus,  110  U.  S.  568,  4  Sup.  Ct.  232,  28  L. 
ed.  246  (relief  demanded  amounts  to  ejectment);  Aleck  v.  Jackson, 
49  N.  J.  Eq.  507,  23  Atl.  760;  Parks  v.  Jackson,  11  Wend.  442;  Mo- 
hawk etc.  E.  Co.  V.  Clute,  4  Paige,  384j  Bedell  v.  Hoffman,  2  Paige, 
199. 


99  INTERPLEADEE.  §  61 

erty,  when  there  are  conflicting  claimants  to  the  debt 
secured.®^ 

§  61.  Interpleader  in  Legal  Actions.^^ — "In  England 
and  in  many  of  the  American  states  a  summary  mode  of 
interpleader  by  motion  and  order  in  certain  legal  ac- 
tions is  authorized.^'     These  statutes  substantially  pro- 

85  See  Vyvyan  v.  Vyvyan,  30  Beav.  65;  Crass  v.  Memphis  etc.  R. 
Co.,  96  Ala.  447,  11  South,  480;  Eobson  v.  Du  Bose,  79  Ga.  72,  4  S.  E. 
329  (taxes);  Newhall  v.  Kastens,  70  111.  156  (mechanics'  liens);  Cur- 
tis V.  Williams,  35  111.  App.  518;  Nof singer  v.  Reynolds,  52  Ind.  218; 
Board  v.  Scoville,  13  Kan.  17  (mechanics'  liens);  Illingworth  v. 
Eowe,  52  N.  J.  Eq.  360,  28  Atl.  456  (same);  Van  Winkle  v.  Owen, 
54  N.  J.  Eq.  253,  34  Atl.  400  (judgment) ;  Bedell  v.  Hoffman,  2  Paige, 
199;  Badeau  v.  Rogers,  2  Paige,  209;  Parks  v.  Jackson,  11  Wend.  442; 
Mohawk  etc.  E.  Co.  v.  Clute,  4  Paige,  384  (taxes);  Van  Loan  v. 
Squires,  23  Abb.  N.  Cas.  (N.  Y.)  230;  Dohnert's  Appeal,  64  Pa.  St. 
311;  Koppinger  v.  O'Donnell,  16  E.  I.  417,  16  Atl.  714.  See,  also, 
Union  Trust  Co.  v.  Stamford  Trust  Co.,  72  Conn.  86,  43  Atl.  555,  for 
a  bill  of  this  character  authorized  by  statute. 

86  Pom.  Eq.  Jur.,  §  1329,  and  notes.  This  section  of  Pom.  Eq.  Jur. 
is  cited  in  Northwestern  Mut.  Life  Ins.  Co.  v.  Kidder,  162  Ind.  382, 
70  N.  E.  489. 

87  The  English  statute  of  1  &  2  Wm.  IV,  c.  58,  §  1,  allowed  this 
proceeding  in  actions  of  assumpsit,  debt,  trover,  and  detinue.  For 
cases  under  this  statute  see  Frost  v.  Hey  wood,  2  Dowl.,  N.  S.,  801; 
l^alton  V.  Eailway  Co.,  74  E.  C.  L.  (12  Com.  B.)  458;  Baker  v.  Bank 
of  Australasia,  1  Com.  B.,  N.  S.,  515;  Turner  v.  Kendal,  13  Mees.  &  W. 
171.  For  the  amendment  made  by  the  common-law  procedure  act  of 
1860,  see  ante,  note  30,  §  47.  The  American  statutes  mainly  differ 
with  respect  to  the  kinds  of  actions  in  which  the  proceedino'  is  al- 
lowed. In  a  few  states  it  is  confined  to  actions  on  contract  for 
money:  AUhama:  Code  1876',  §§  2906,  2907;  Code  1886,  §§  2610, 
2611;  Code  1896,  §  2633;  Jackson  v.  Jackson,  84  Ala.  343,  4  South. 
174;  Coleman  v.  Chambers,  127  Ala.  615,  29  South.  58;  or  to  actions 
for  the  recovery  of  personal  property:  Arkansas:  Code  1874,  §§ 
4483,  4484;  Iowa:  2  McClain's  Stats.  1880,  §  2572;  Oregon:  Gen. 
Laws,  1872,  p.  Ill,  §  3P.  In  several  states  the  proceeding  is  allowed 
in  actions  on  contract,  and  in  those  for  the  recovery  of  specific  per- 
sonal property:  California:  Code  Civ.  Proc,  §  336  (for  recent 
amendment,  see  ante,  note  under  §  47);  Idaho;  Gen.  Laws  1880-81, 
§  201;  Kansas:  Dassler's  Comp.  Laws  1881,  §§  3564,  3565;  Nebraska: 
Brown's  Comp.  Stats.  1881,  pp.  535,  536,  §  48;   Ohio:  2  Eev.  Stats. 


§  61  EQUITABLE    EEMEDIES.  100 

Tide  that  in  actions  specified  the  defendant  may  show 
by  aflSdavit  that  the  same  thing  or  money  is  claimed  by 
another  person  besides  the  plaintiff ;  that  he  has  sued  or 
threatens  to  sue;  that  defendant  is  not  in  collusion  ^Yith 
him;  and  that  defendant  is  ready  and  willing  to  bring 
the  thing  or  money  into  court.  The  court  on  motion 
may  order  such  claimant  to  be  substituted  as  defend- 
ant in  the  action  in  place  of  the  original  defendant. 
It  is  universally  held  that  these  statutes  do  not  at  all 
limit  nor  affect  the  equitable  jurisdiction  by  suit;  they 
merely  furnish  another  special,  cumulative,  and  concur- 
rent remedy.  The  ordinary  type  of  these  statutes  does 
not  alter  the  settled  doctrines  concerning  interpleader. 
The  statutory  remedy  is  a  mere  substitute  for  the  equi- 
table remedy  by  suit,  in  the  kinds  of  actions  to  which 
it  applies,  and  is  governed  by  the  same  rules.^^     Of 

1880,  §§  5016,  5017;  Mississippi:  Rev.  Code,  1880,  §  1578,  Interpleader 
by  garnishee;  Code  1880,  §  2449;  Dodds  v.  Gregory,  61  Miss.  351. 
In  others  it  embraces  actions  on  contract,  and  actions  for  the  recov- 
ery of  real  or  of  personal  property:  Dakota:  Eev.  Codes  1877,  p.  4'JL^ 
§  91;  Indiana:  Eev,  Stats.  1881,  §  273;  Mansfield  v.  Shipp,  128  Ind. 
55,  27  N.  E.  427;  Minnesota:  Stats.  1878,  p.  725,  §  131;  New  York:  Code 
Civ.  Proc.  (new  code),  §  820;  Sickles  v.  "Wilmerding,  59  Hun,  375, 
13  N.  Y.  Supp.  43  (what  is  an  "action  upon  contract"  within  this 
section);  Laws  1882,  c.  409,  §  259,  Laws  1892,  c.  689,  §  115,  inter- 
pleader in  action  against  savings  bank;  see  as  to  this  act,  Progres- 
sive Handlanger  Union  v.  German  Sav.  Bank,  23  Abb.  N.  C.  42,  7 
N.  Y.  Supp.  3;  affirmed,  57  N.  Y.  Super.  Ct.  (25  J.  &.  S.)  594,  8  N.  Y. 
Supp.  545;  Faivre  v.  Union  Dime  Sav.  Inst.,  59  N.  Y.  Super.  Ct.  (27 
J.  &  S.)  558,  18  N.  Y.  Supp.  423;  Mahro  v.  Greenwich  Sav.  Bank,  16 
Misc.  Eep.  275,  38  N.  Y.  Supp.  126,  reversed  in  16  Misc.  Eep.  537,  40  N 
Y.  Supp.  29;  North  Carolina:  Battle's  Eev.  1873,  p.  r56,  §  65;  Sniit^ 
Carolina;  Eev.  Stats.  1873,  p.  597,  §  145.  In  two  states  it  is  author- 
ized "in  any  action":  Yirginia:  Code  1873,  c.  149,  p.  1019;  West 
Virginia:  1  Kelly's  Eev.  Stats.  1879,  c.  7,  p.  238;  Dickeshied  v.  Ex- 
change Bank,  28  W.  Va.  340.  In  some  other  states  a  similar  proceed- 
ing is  authorized  by  statute  in  certain  special  cases:  Colorado: 
King's  Code  Civ.  Proc,  1880,  p.  151,  §  404. 

88  Oriental  Bank  v.   Nicholson,   3  Jur.,  N.   S.,  857;   Slaney  v.  Sid- 
ney, 14  Mees.  &  W.  800;  Tauten  v.  Groh,  4  Abb.  App.  358;  Vosburgh 


101  INTERPLEADER.  §  61 

course,  the  statutes  may  change  the  equitable  doctrines ; 
may  enlarge  their  scope  of  operation ;  and  a  few  of  them 
have  doubtless  produced  this  effect,  as  in  the  clauses 
introduced  by  amendment  into  the  statutes  of  England 
and  California,  already  noticed."^* 

V.  Huntington,  15  Abb.  Pr.  254;  Johnson  v.  Maxey,  43  Ala.  521; 
Nelson  v.  Goree's  Admr.,  34  Ala.  565;  Starling  v.  Brown,  7  Bush, 
164;  Board  of  Education  v.  Scoville,  13  Kan.  17;  Pfister  v.  Wade,  56 
Cal.  43;  Coleman  v.  Chambers,  127  Ala.  615,  29  South.  58;  Fox  y. 
Sutton,  127  Cal.  515,  59  Pac.  939;  Hartford  Life  Ann.  Co.  v.  Cum- 
mings,  50  Neb.  236,  69  N.  W.  782;  American  Trust  &  S.  Bank  v.  Thal- 
heimer,  51  N.  Y.  Supp.  813,  29  App.  Div.  170;  Brock  v.  Southern  Ry. 
Co.,  44  S.  C.  444,  22  S.  E.  601  (approving  above  text);  Kinney  v. 
Hynds,  7  Wyo.  22,  49  Pac.  403,  52  Pac.  1081.  That  the  statutory 
remedy  is  concurrent,  and  has  not  done  away  with  interpleader  by 
suit  in  equity,  see,  also,  New  England  Mut.  L,  I.  Co.  v.  Keller,  7 
Civ.  Proc.  Rep,  (N.  Y.)  109;  Cronin  v.  Cronin,  9  Civ.  Proc.  Rep.  (N. 
Y.)  137,  3  How.  Pr.,  N.  S.,  184;  Lane  v.  New  York  L.  Ins.  Co.,  56 
Hun,  92,  9  N,  Y.  Supp.  52;  Dubois  v.  Union  Dime  Sav.  Inst.,  89  Hun, 
382,  35  N.  Y.  Supp.  397;  First  Nat.  Bank  v.  Beebe,  62  Ohio  St.  41, 
56  N.  E.  485.  That  the  statutory  remedy  is  governed  by  the  same 
principles  as  the  remedy  in  equity,  see  Pustet  v.  Flannelly,  60  How. 
Pr.  67;  Lawrence  v.  Watson,  8  Hun,  593;  Schell  v.  Lowe,  75  Hun, 
43,  23  Civ.  Proc.  Rep.  300,  26  N.  Y.  Supp.  991;  Dinley  v.  McCullagh, 
92  Hun,  454,  36  N.  Y.  Supp.  1007;  Windecker  v.  Mut.  L.  Ins.  Co.,  43 
N.  Y.  Supp.  358,  12  App.  Div.  73;  Burritt  v.  Press  Pub.  Co.,  19  App. 
Div.  609,  25  App.  Div.  141,  46  N.  Y.  Supp.  95,  49  N.  Y.  Supp.  201. 
As  to  the  discretionary  nature  of  the  order,  see  Burritt  v.  Press 
Pub.  Co.,  25  App.  Div.  141,  49  N.  Y.  Supp.  201. 

89  See  ante,  §  47,  note  30;  Tanner  v.  European  Bank,  L.  R.  1  Ex. 
261;  Wells,  Fargo  &  Co.  v.  Miner,  25  Fed.  533;  Dickeshied  v.  Ex- 
change Bank,  28  W.  Va.  340.  As  to  actions  under  codes  of  proce- 
dure adopting  the  reformed  procedure,  see  Cady  v.  Potter,  55  Barb. 
463;  Washington  etc.  Ins.  Co.  v.  Lawrence,  28  How.  Pr.  435;  St.  Louis 
Life  Ins.  Co.  v.  Alliance  Mut.  L.  Ins.  Co.,  23  Minn.  7;  Board  of 
Education  v.  Scoville,  13  Kan.  17;  Pfister  v.  Wade,  56  Cal.  "43. 


EQUITABLE    EEMEDIES,  102 


CHAPTER  III. 


APPOINTMENT  OF  RECEIVERS. 

ANALYSIS. 

5§  62-73.  General  principles  regulating  the  appointment. 

§  62.  Definition  of  receiver;   a  provisional  remedy. 

S§  63-67.  The  appointment   discretionary. 

§  64.  Principles    governing    the  court's    discretion;  imminent 
danger. 

§  65.  Same;  insolvency  of  defendant. 

§  66.  Same;  probability  of  plaintiff's  success  in  the  suit. 

§  67.  Caution  observed  in  making  the  appointment. 

§  68.  Applicant  must  come  with  "clean  hands"  and  without 
laches. 

§  69.  Inadequacy  of  legal  remedy.  , 

§  70.  BiU  fully  denied  by  answer. 

§  71.  Must  be  a  suit  pending. 

SS  72-73.  Statutory  regulation   of  the  appointment. 

§  72.  The  supreme  court  of  judicature  act,  in  England. 

§  73.  Statutory  provisions  in  the  United  States. 

IS  74-76.  Class  I. 

§  74.  (1)   Infants'   estates. 

§  75.  (2)   Lunatics'  estates. 

§  76.  (3)  Estates  of  decedents. 

{§  77-87.  Class  IL 

§  77.  In  general. 

S§  78-85.  (1)   Receivers  in  settlement  of  partnership  affairs. 

§  78.  In  general. 

§  79.  Existence  of  partnership  must  be  proved;  and  necessity 
for  dissolution  must  be  shown. 

I  80.  Mere  right  to  dissolution  not  sufBcient. 

§  81.  Exclusion  from  management  as  ground. 

§  82.  After  dissolution;   partner  liquidating  under  agreement. 

§  83.  After  dissolution;   no  agreement  for  liquidation. 

§  84.  Eeceiver  on  death  of  partner. 

§  85.  Miscellaneous. 

§  86.     (2)   In  partition  and  other  suits  between  co-owners. 

§  87.     (3)  In  suits  between  conflicting  claimants  of  land. 

<S  88-133.  Class  IIL 

S  88.  In  general. 


103  APPOINTMENT  OF  RECEIVEKS. 

§§  89-90.     (1)  Receivers   in   suits   against   trustees,   for  breach   of 
trust. 
§  90.     Same;   assignees  for  benefit  of  creditors, 
§  91.     (2)  In  suits  against  executors  and  administrators. 
SS  92-104.     (3)   Receivers  in   suits   to  enforce  mortgages. 
§  92.     English  rule. 
§  93.     General  rule  in  United  States;  receiver  appointed  when 

security  inadequate  and   mortgagor  insolvent. 
§  94.     Same;   rule  not  followed  in  certain  states. 
§  95.     Other  grounds. 

§  96.     General  considerations  governing  the  appointment. 
§  97.     Effect   of  stipulations  in  the   mortgage. 
§  98.     Time  of  the  appointment. 

§  99.     Effect  of  assignment  of  the  mortgaged  premises;  of  ad- 
ministration thereof:  and  of  homestead   right  therein. 
§  100.     To  what  the  receiver's  title  extends. 
§  101.     Receiver  on  application  of  junior  mortgagee. 
§  102.     Same;  right  to  rents  as  between  prior  and  junior  mort- 
gagees. 
§  103.     Receivers  in  behalf  of  others  than  mortgagees. 
§  104.     Chattel  mortgages. 
SS  105-110.     (4)   Suits  to  enforce  liens. 

§  105.     Suits  to  enforce  equitable  liens;  statutory  liens. 

§  106.     Judgii.ent  creditors'  suits;   in  general. 

§  107.     Same;    receivers  of   debtor's  property  subject  to   prior 

mortgage. 
S  108.     Same;  nature  of  the  property  as  affecting  appointment — 

Receiver  of  rents. 
§  109.     Same;  miscellaneous  cases. 

§  110.     Receivers  in  proceedings  supplementary  to  execution. 
§  111.     (5)  In    suits    for    specific    performance,  or  to    enforce 

vendor's  lien. 
S  112.     (6)   In  behalf   of  unsecured   creditors  before  judgment. 
§  113.     (7)   In  suits  for  rescission  of  contracts  for  sale  of  land. 
§  114.     (8)   In  suits  to  enforce  payment  of  annuities. 
§  115.     (9)   In  suits  for  the  protection  of  remaindermen. 
S§  116-131.     (10)   Appointment   of   receivers   of   corporations. 
f§  116-126.     The  inherent  jurisdiction   of   equity. 
§  116.     In  general. 

§   117.     Receivers   of   corporations   cautiously   appointed. 
§  118.     Receiver  is  an  ancillary  remedy;  not  appointed  on  the 

petition  of  the  corporation. 
S  119.     Suit  for   dissolution  and  receiver;  no  inherent  jurisdic- 
tion. 
S  120.     Stockholders'  suit  for  breach  of  fiduciary  duty  by  di- 
rectors. 


EQUITABLE    EEMEDIES.  104 

f  121.     Same;  power,  when  not  exercised. 

§  122.     Same;  power,  when  exercised. 

§  123.     Receiver  after  dissolution. 

§   124.     Dissensions   in   the   governing  body  of  the   corporation^ 
and  among  the  stockholders. 

§  125.     Receiver  on  application  of  creditors. 

§  126.     In  foreclosure  of  mortgages  on  corporate  property, 

§  127.     Receivers  authorized  by  statutes. 
§5  123-131.     Railroad  receivers, 

§  128.     In  general. 
§§  129-131.     In  foreclosure  of  railroad  mortgages. 

§   129.     In  general. 

§  130.     Same;  at  what  stage  appointed. 

§  131.     Same;  trustee's  right  to  take  possession  on  default  as 
affecting  the  question  of  appointment. 

§   132.     (11)   Receivers    in    bankruptcy    proceedings. 

§  133.     (12)   Alimony   and  maintenance — Miscellaneous  cases. 

§  134.     Fourth   class. 
§§  135-147.     Notice  of  the  application  for  appointment. 

§  135.     A   receiver  is  not   appointed   without   notice  to  the   de- 
fendant. 

§  136.     Notice  is  necessary  where  appointment  sought  in  pend- 
ing suit. 

§  137.     To   whom  notice  must  be   given;  waiver;   review   of  ex 
parte  appointment. 
§§  138-147.     Cnses  wherein  notice  is  not  necessary. 

§   139.     Same;  tendency  to  restriction  of  ex  parte  appointments. 
§§  140-147.     Lack   of    notice   as     affecting   the    appointment   in   the 
various  classes  of  cases. 

§  140.     In   class   I. 

§   141.     In  class  II — Partnership — Conflicting  claimants  of  land, 
§§  142-147.     In  class  III — Persons  in  position  of  trust  or  quasi  trust. 

§   143.     In  mortgage  foreclosure. 

§  144.     In   creditors'  suits. 

§  145.     In  suits  by  stockholders  against  corporations. 

1  146.     In  suits  by  creditors  against  corporations. 

§   147.     Ex  parte  receivers  of  railroads. 
§§  148-153.     Soloctinn    nnd    elisribility    of    receiver. 

§  148.     In  general;  not  disturbed  on  appeal. 

§  149.     Appointment  of  person  interested  in  the  suit, 

§   150.     Appointment  of  master  in  chancery;  of  trustee;  of  soli- 
citor. 

§  151.     Appointment  of  partner;  of  creditor. 

§   152.     Appointment  of  corporation  officer. 

§  153.     Same;  officers  or  stockholders  appointed  from  necessity. 


105  APPOINTMENT  OF  RECEIVERS;  IN  GENERAL.         S  62 

§  62.  Definition  of  Receiver;  a  Provisional  Remedy. — . 
**A  receiver  is  a  person  standing  indifferent  between 
the  parties,  appointed  by  the  court  as  a  quasi  oflflcer  or 
representative  of  the  court,  to  hold,  manage,  control, 
and  deal  with  the  property  which  is  the  subject-matter 
of  or  involved  in  the  controversy,  under  the  direction 
of  the  court,  during  the  continuance  of  the  litigation."^ 

1  Pom.  Eq.  Jur.,  §  1330,  continuing:  "either  where  there  is  no  per- 
son entitled  competent  to  thus  hold  it — ^as,  for  example,  in  the  case 
of  an  infant,  or  in  the  interval  before  an  executor  or  administrator 
of  a  deceased  owner  is  appointed;  or  where  two  or  more  litigants 
are  equally  entitled,  but  it  is  not  just  and  proper  that  either  of 
them  should  retain  it  under  his  control — as,  for  example,  in  some 
suits  between  partners;  or  where  a  person  is  legally  entitled,  but 
there  is  danger  of  his  misapplying  or  misusing  it — as,  for  example, 
in  some  suits  against  an  executor  or  administrator,  or,  under  some 
particular  circumstances,  in  suits  for  the  enforcement  of  a  mortgage; 
or  he  is  appointed  in  like  manner  and  under  like  circumstances  for 
the  purpose  of  carrying  into  effect  a  decree  of  the  court  concerning 
the  property — as,  for  example,  a  decree  for  the  winding  up  and  set- 
tlement of  a  corporation,  or  the  decree  in  a  creditor's  suit."  This 
classification  of  the  objects  for  which  a  receiver  may  be  appointed 
has  teen  adopted  in  the  present  work.  "A  receiver  is  an  indifferent 
person  between  parties,  appointed  by  the  court  to  receive  the  rents, 
issues  or  profits  of  land  or  other  thing  in  question  in  this  court, 
pending  the  suit,  where  it  does  not  seem  reasonable  to  the'  court  that 
either  party  should  do  it.  He  is  an  officer  of  the  court;  his  appoint- 
ment is  provisional.  He  is  appointed  in  behalf  of  all  parties,  and 
not  of  the  complainant  or  of  the  defendant  only.  He  is  appointed 
for  the  benefit  of  all  parties  who  may  establish  rights  in  the  cause. 
The  money  in  his  hands  is  in  custodia  legis  for  whoever  can  make  out 
a  title  to  it.  It  is  the  court  itself  which  has  the  care  of  the  property 
in  dispute.  The  receiver  is  but  the  creature  of  the  court;  he  has  no 
powers  except  such  as  are  conferred  upon  him  by  the  order  of  his 
appointment  and  the  course  and  practice  of  the  court":  Booth  v. 
Clark,  17  How.  322,  331,  15  L.  ed.  164.  Se©  the  following  cases, 
among  others,  for  definitions  of  the  nature  and  purpose  of  the  re- 
ceiver's office  and  general  statements  as  to  the  motives  that  influence 
the  court  in  making  or  refusing  the  appointment:  Gayle  v.  Johnson, 
80  Ala.  388;  Ashurst  v.  Lehman,  Durr  &  Co.,  86  Ala.  370,  5  South. 
731,  and  cases  cited;  Baker  v.  Backus 's  Admr.,  32  111.  79,  96;  Jackson 
V.  King,  9  Kan.  App.  160,  58  Pae.  1013;  Corey  v.  Long,  12  Abb.  Pr^ 


§  62  EQUITABLE    EEMEDIES.  106 

As  is  said  in  a  leading  case,  "By  means  of  the  appoint- 
ment of  a  receiver,  a  court  of  Equity  takes  possession 
of  the  property  which  is  the  subject  of  the  suit,  pre- 
serves it  from  waste  or  destruction,  secures  and  collects 
the  proceeds  or  profits,  and  ultimately  disposes  of  them 
according  to  the  rights  and  priorities  of  those  entitled.^ 

"The  receiver  appointed  is  the  officer  and  representa- 
tive of  the  court,  subject  to  its  orders,  accountable  in 
such  manner  and  to  such  persons  as  the  court  may  di- 
rect, and  having  in  his  character  of  receiver  no  personal 
interest,  but  that  arising  out  of  his  responsibility  for 
the  correct  and  faithful  discharge  of  his  duties.  It  is 
of  no  consequence  to  him  how,  or  when,  or  to  whom,  the 
court  may  dispose  of  the  funds  in  his  hands,  provided 
the  order  or  decree  of  the  court  furnishes  to  him  a  suf- 
ficient protection. "3 

"The  order  of  appointment  is  in  the  nature,  not  of 
an  attachment,  but  of  a  sequestration ;  it  gives  in  itself 
no  advantage  to  the  party  applying  for  it  over  other 
claimants;  and  operates  prospectively  upon  rents  and 
profits  which  may  come  to  the  hands  of  the  receiver, 
as  a  lien  in  favor  of  those  interested,  according  to  their 
rights  and  priorities  in  or  to  the  principal  subject  out 
of  which  those  rents  and  profits  issue. "^ 

N.  S.  427;  Skinner  v.  Maxwell,  &6  N,  C.  45;  Battle  v.  Davis,  66  N.  C. 
252. 

2  Beverley  v.  Brooke,  4  Gratt.  (Va.)  187,  208. 

3  Beverley  v.  Brooke,  4  Gratt.  (Va.)     187,  208. 

4  Beverley  v.  Brooke,  4  Gratt.  (Va.)  187,  208.  "A  receiver  derives 
his  authority  from  the  act  of  the  court  appointing  him,  and  not  from 
the  act  of  the  parties  at  whose  suggestion  or  by  whose  consent  he 
is  appointed;  and  the  utmost  effect  of  his  appointment  is  to  put  the 
property  from  that  time  into  his  custody,  as  an  officer  of  the  court, 
for  the  benefit  of  the  party  ultimately  proved  to  be  entitled,  but  not 
to  change  the  title,  or  even  the  right  of  possession,  in  the  property": 
Union  Nat.  Bank  of  Chicago  v.  Kansas  City  Bank,  136  U.  S.  223, 
10  Sup.  Ct.  1013,  34  L.  ed.  341,  per  Gray,  J.     For  further  statements 


107  APPOINTMENT  OF  KECEIVEES;  IN  GENEEAL.         ^  63 

§  63.  The  Appointment  Discretionary — "The  appoint- 
ment of  a  receiver  is,  as  a  general  rule,  discretionary.'^ 
The  discretion  is  not  arbitrary  or  absolute;  it  is  a 
sound  and  judicial  discretion,  taking  into  account  all 
the  circumstances  of  the  case,^  exercised  for  the  pur- 
pose of  promoting  the  ends  of  justice,  and  of  protect- 

of  the  doctrine  that  the  appointment  of  the  receiver  does  not  affect 
the  title  of  either  party,  see  Howell  v.  Hough,  4&  Kan.  152,  26  Pac. 
436;  Jackson  v.  King,  9  Kan,  App.  160,  58  Pac.  1013;  Chase's  Case, 
1  Bland  (Md.),  206,  17  Am.  Bee.  277;  Ellicott  v.  Warford,  4  Md. 
85;  Ellis  v.  Boston  H.  &  E.  E.  E.  Co.,  107  Mass.  1,  28;  Mays  v.  Eose, 
Freem.  Ch.  (Miss.)  718;  Bank  of  Mississippi  v.  Duncan,  52  Miss.  740, 
743;  Battle  v.  Davis,  66  N.  C.  252,  256;  Harman  v.  McMuUin,  85  Va. 
187,  7  S.  E.  349;  Krohn  v.  Weinberger,  47  W.  Va.  127,  34  S.  E.  746; 
Mead  v.  Burk,  156  Ind.  577,  60  N.  E.  338;  Bitting  v.  Ten  Eyck,  85 
Ind.  357;  Ex  parte  Walker,  25  Ala.  81,  104. 

5  The  passage  quoted  is  from  Pom.  Eq.  Jur.,  §  1331;  its  language  has 
been  frequently  adopted  by  the  courts.  See,  also,  Pennsylvania  Co.  v. 
Jacksonville  T.  &  K.  W.  E.  Co.,  55  Fed.  131,  2  U.  S.  App.  606;  Moore  v. 
Bank  of  British  Columbia,  106  Fed.  574  (citing  Pom.  Eq.  Jur.,  §  1331); 
Crane  v.  McCoy,  1  Bond,  422,  Fed,  Cas.  No.  3354;  Forsaith  Mach.  Co.  v. 
Hope  Mill  Lumber  Co.,  109  N.  C.  576, 13  S.  E.  869;  Warren  v.  Pitts,  114 
Ala,  65,  21  South,  494;  Provident  Life  Ins.  Co.  v.  Keniston,  53  Neb. 
86,  73  N.  W.  216;  Woodward  v.  Woodward,  17  Ky.  Law  Eep.  464, 
31  S.  W.  734  (though  the  appointing  power  was  given  by  statute); 
Fluker  v.  Emporia  E.  E.  Co.,  48  Kan.  587,  30  Pac.  18;  Simmons  Hard- 
ware Co.  V.  Waibel,  1  S.  D.  488,  36  Am.  St.  Eep.  755,  47  N.  W.  418, 
814,  11  L.  R.  A.  267  (citing  Pom.  Eq.  Jur.,  §  1331);  Pullan  v.  Cin- 
cinnati etc.  E,  E.  Co.,  4  Biss.  47,  Fed.  Cas.  No.  11,461;  Chicago  etc. 
Oil  &  Min.  Co.  v.  United  States  Petroleum  Co.,  57  Pa.  St.  83  (posses- 
sion under  lease  not  disturbed). 

6  Owen  V.  Homan,  4  H.  L.  Cas.  997;  Norris  v.  Lake,  89  Va.  513, 
16  S.  E.  663;  Meyer  v.  Thomas  et  al.,  131  Ala.  Ill,  30  South.  89; 
Vose  V.  Eeed,  1  Woods,  647,  Fed.  Cas.  No.  17,011;  Hanna  v.  Hanna, 
89  N.  C.  68  (allowing  receiver  for  necessary  part) ;  May  v.  Ease, 
(Miss.),  Freem.  Ch.  703  (sale  in  fraud  of  creditors).  In  Vose  v. 
Eeed,  1  Wood,  650,  Fed.  Cas.  No.  17,011,  the  court  said:  "But  all 
the  circumstances  of  the  case  are  to  be  taken  into  consideration, 
and  if  the  case  be  such  that  a  greater  injury  would  ensue  from  the 
appointment  of  a  receiver  than  from  leaving  the  property  in  the 
hands  now  holding  it,  or  if  any  consideration  of  propriety  or  conven- 
ience render  the  appointment  of  a  receiver  improper  or  inexpedient, 
none  will  be  appointed." 


§  64  EQUITABLE    EEMEDIES.  108 

ing  the  rights  of  all  the  parties  interested  in  the  con- 
troversy and  the  subject-matter,"^  and  based  upon  the 
fact  that  there  is  no  other  adequate  remedy  or  means 
of  accomplishing  the  desired  objects  of  the  judicial  pro- 
ceeding." Therefore,  the  discretion  of  the  court  in  ap- 
pointing a  receiver  will  not  be  interfered  with  by  an 
appellate  court,  unless  it  is  clear  that  it  has  been  abused 
or  exercised  in  a  manner  inconsistent  with  well-estab- 
lished rules  governing  such  application.® 

§  64.     Principles    Governing   the    Court's   Discretion;    Im- 
minent  Danger. — The   general   principles   which   should 

7  American  Biscuit  &  Mfg.  Co.  v.  Klatz,  44  Fed.  721  (will  not 
aid  improper  or  illegal  scheme);  McGeorge  v.  Big  Stone  Gap  Imp. 
Co.  57  Fed.  262  (probability  of  injury  to  defendant);  Fort  Payne 
Furnace  Co.  v.  Fort  Payne  Coal  Co.,  96  Ala.  472,  38  Am.  St.  Rep.  109, 
11  South.  439  (corporation  not  divested  of  lands  it  intended  sell- 
ing; in  commenting  on  the  exercise  of  the  court's  discretion  in  ap- 
pointing receivers,  the  court  quotes  Pom.  Eq.  Jur.,  §  1331,  with  ap- 
proval); Sales  v.  Lusk,  60  Wis.  490,  19  N.  W.  362  (subsequent  mort- 
gagees protected). 

8  Mead  v.  Burke,  156  Ind.  577,60  N.  E.  338  ("there  must  be  a  plain 
abuse,  to  the  prejudice  of  the  complaining  party");  Rider  v.  Bagley, 
84  N.  Y.  461  (fraud  on  lower  court);  Bagley  v.  Scudder,  66  Mich. 
97,  33  N".  W.  47  (approved  in  Dutton  v.  Thomas,  97  Mich.  93,  56 
N.  W.  229);  Fluker  v.  Emporia  R.  R.  Co.,  48  Kan.  587,  30  Pac.  18 
(discretion  not  abused);  Naylor  v.  Sidener,  106  Ind.  179,  6  N.  E. 
345  (weight  of  evidence  insufficient) ;  Crawford  v.  Ross,  39  Ga.  44 
(not  unless  illegal);  Heinze  v.  Butte  &  Boston  Consolidated  Min.  Co., 
126  Fed.  1,  11,  61  C.  C.  A.  63  (citing  Beaumont  v.  Beaumont,  166  Pa. 
St.  615,  31  Atl.  336;  Nimocks  v.  Shingle  Co.,  110  N.  C.  230,  14  S.  E. 
684;  Sanders  v.  Slaughter,  89  Ga.  34,  14  S.  E.  903);  Woods  v.  Grayson, 
16  App.  D.  C.  174.  But  see  contra,  Meyer  v.  Thomas,  131  Ala.  Ill, 
30  South.  89;  Pelzer  v.  Hughes,  27  S.  C.  408,  3  S.  E.  781;  De  Walt 
V.  Kinard,  19  S.  C.  286;  Simmons  Hardware  Co.  v.  Waibel,  1  S.  D. 
488,  36  Am.  St.  Rep.  755,  47  N.  W.  814,  11  L,  R.  A.  267  (lower  court 
refused  to  take  possession  of  copy  of  secret  code) ;  Perrin  v.  Lepper, 
56  Mich.  351,  23  N.  W.  39,  "The  discretion  is  not  so  absolute  that 
it  may  not  be  reviewed,  and  its  exercise,  if  improper,  reversed": 
4  Pom.  Eq.  Jur.,  §  1331,  note  1,  citing  La  Societe  Francaise  v.  Dis- 
trict Court,  53  Cal.  495;  Milwaukee  R.  R.  v.  Soutter,  2  Wall.  521,  17 
L.  ed.  860. 


109  APPOINTMENT  OF  EECEIVEES;  IN  GENERAL.         §64 

govern  the  court  in  the  exercise  of  its  discretion  have 
been  thus  formulated  in  a  leading  case:  The  plaintiff 
must  show,  first,  either  that  he  has  a  clear  right  to  the 
property  itself,  or  that  he  has  some  lien  upon  it ;  or  that 
the  property  constitutes  a  special  fund  to  which  he  has 
a  right  to  resort  for  the  satisfaction  of  his  claim;  and 
secondly,  that  the  possession  of  the  property  by  the  de- 
fendant was  obtained  by  fraud;  or  that  the  property 
itself,  or  the  income  arising  from  it,  is  in  danger  of  loss 
from  the  neglect,  waste,  misconduct  or  insolvency  of 
the  defendant*     The  element  of  danger  is  an  important 

9  May  V,  Eose,  Freem.  Ch.  (Miss.)  703,  718;  Steele  v.  Aspy,  128 
Ind.  367,  27  N.  E.  739;  State  v.  Union  Nat.  Bank,  145  Ind.  537,  57 
Am.  St.  Eep.  209,  44  N.  E.  585.  "As  a  general  rule,  a  receiver  will 
be  appointed  for  the  purpose  of  protecting  the  fund  when  the  com- 
plainant has  an  equitable  interest  in  the  subject,  and  the  defendant 
having  possession  of  the  property  is  wasting  it,  or  removing  it  out  of 
the  jurisdiction  of  the  court":  Vose  v.  Eeed,  1  Woods,  647,  Fed,  Cas. 
No.  17,011,  per  Bradley,  J.  See,  also,  Lancaster  v.  Asheville  St.  Ey. 
Co.,  90  Fed.  129,  133;  Eyder  v.  Bateman,  93  Fed.  16.  "The  power 
to  appoint  a  receiver  is  most  usually  called  into  action  either  to  pre- 
vent fraud,  save  the  subject  of  litigation  from  material  injury,  or 
rescue  it  from  threatened  destruction":  Baker  v.  Backus 's  Admr., 
32  111.  79,  96.  That  the  plaintiff  cannot  have  a  receiver  when  he  has 
parted  with  his  entire  interest  in  the  property,  see  Steele  v.  Aspy, 
supra;  Smith  v.  Wells,  20  How.  Pr.  158. 

In  Pom.  Eq.  Jur.,  §  1331,  note,  are  the  following  quotations  and 
comment:  "In  Bainbrigge  v.  Baddeley,  3  Macn.  &  G.  413,  419,  the 
court,  speaking  of  the  general  grounds  for  the  appointment  of  a  re- 
ceiver, said:  'There  are,  I  apprehend,  two  grounds,  and  two  only:  1. 
That  there  is  a  reasonable  probability  of  success  on  the  part  of  the 
plaintiff;  and  2.  That  the  property,  the  subject  of  the  suit,  is  in  dan- 
ger.' In  Blondheim  v.  Moore,  11  Md.  365,  the  following  rules  con- 
trolling the  exercise  of  the  discretion  were  laid  down,  which  have 
been  frequently  quoted  as  a  correct  generalization:  '1.  That  the  power 
of  appointment  is  a  delicate  one,  and  is  to  be  exercised  with  great 
circumspection;  2.  That  it  must  appear  the  claimant  has  a  title  to  the 
property,  and  the  court  must  be  satisfied  by  affidavit  that  a  receiver 
is  necessary  to  preserve  the  property;  3.  That  there  is  no  case  in 
which  the  court  appoints  a  receiver  merely  because  the  measure  can 
do  no  harm;  4.  That  fraud  or  imminent  danger,  if  the  intermediate 


§  64  EQUITABLE    REMEDIES.  110 

consideration ;  a  remote  or  past  clanger  will  not  suffice 
as  a  ground  for  the  relief,  but  there  must  be  a  well- 
grounded  apprehension  of  immediate  injury.  Nor  will 
the  court  act  upon  a  possible  danger  only;  the  danger 
must  be  great  and  imminent,  and  demanding  immediate 
relief.^" 

It  has  been  truly  said  that  a  court  will  never  appoint 
a  receiver  merely  on  the  ground  that  it  will  do  no 
harm.^^  This  would  seem  to  follow  naturally  from  the 
rule  that  the  appointment  is  primarily  to  prevent  im- 
minent injury.^2 

possession  should  not  be  taken  by  the  court,  must  be  clearly  proved; 
and  5.  That  unless  the  necessity  be  of  the  most  stringent  character, 
the  court  will  not  appoint  a  receiver  until  the  defendant  is  first 
heard  in  response  to  the  application.'  These  rules,  however,  must  be 
taken  with  some  reservations;  they  are  certainly  too  strong  to  be  of 
universal  application,  especially  the  fourth.  There  are  classes  of 
cases  in  which  a  receiver  is  appointed  almost  as  a  matter  of  course, 
although  no  fraud  nor  imminent  danger  is  proved." 

10  Lancaster  v.  Asheville  St.  Ey.  Co.,  90  Fed.  129,  133.  See,  also. 
Mead  v.  Burk,  156  Ind.  577,  60  N.  E.  338;  Kean  v.  Colt,  5  N.  J.  Eq. 
365;  Orphan  Asylum  v.  McCartee,  Hopk.  Ch.  (N,  Y.)  429;  Pelzer  v. 
Hughes,  27  S.  C.  408,  3  S.  E.  781;  City  Nat.  Bank  v.  Dunham,  18  Tex. 
Civ.  App.  184,  44  S.  W.  605;  Morris  v.  Lake,  89  Va.  513,  16  S.  E.  663; 
Beecher  v,  Bininger,  7  Blatchf.  170,  Fed.  Cas.  No.  1222;  Kelley  v. 
Boettcher,  89  Fed.  125;  Ft.  Payne  Furnace  Co.  v.  Fort  Payne  Coal 
etc.  Co.,  96  Ala.  473,  38  Am.  St.  Rep.  109,  11  South.  439,  and  cases 
cited.  "It  is  well  settled  that  when  there  is  reasonable  ground  to 
apprehend  that  pending  litigation  the  property  may  be  so  disposed 
of  as  to  deprive  the  complaining  party  of  the  fruit  of  his  victory 
when  had,  a  court  of  equity  will  secure  the  property,  or  in  a  proper 
case  have  it  sold  and  secure  the  fund  arising  from  it  by  the  ap- 
pointment of  a  receiver,  or  by  an  injunction,  and  when  need  be,  by 
both":  Ellctt  v.  Newman,  92  N.  C.  519,  523.  That  the  requirement 
of  imminent  danger  is  not  universal,  see  end  of  last  note. 

11  Orphan  Asylum  Society  v.  McCartee  et  al.,  1  Hopk.  Ch.  429;  ap- 
proved in  Clark  v.  Ridgely,  1  Md.  Ch.  70;  Blondheim  v.  Moore,  11  Md. 
365;  Owen  v.  Homan,  4  H.  L.  Cas.  997  (unless  the  property  is  not  in 
the  enjoyment  of  either  party). 

12  Yet,  the  assurance  that  no  harm  will  follow  tends  to  aid  the 
appointment,   where    there   are    other    proper    grounds:  Nimocks    t. 


Ill     APPOINTMENT   OF  EECEIVEKS;    IN    GENERAL.     §§   65,  66 

§  65.  Same;  Insolvency  of  Defendant. — While  insol- 
vency, alone,  is  not  a  ground  for  the  appointment  of  a 
receiver,  unless  it  has  been  so  declared  by  statute,''"^ 
"the  solvency  or  insolvency  of  the  party  to  be  affected 
is  an  important  consideration  with  a  court  of  equity,  in 
all  cases  guiding,  if  it  does  not  govern,  its  discretion, 
in  the  appointment  of  receivers."^ ^  "The  insolvency  of 
a  defendant  in  possession  of  property  involved  in  litiga- 
tion in  any  case  necessarily  intensifies  the  probability 
of  loss  to  the  complainant,  and  will  serve,  at  least,  to 
show  that  his  remedy  at  law,  for  any  loss  or  injury  that 
may  be  sustained,  would  be  inadequate."^ ^ 

§  60.  Same;  Probability  of  Plaintiff's  Success  in  the  Suit. 
While  it  is  true,  as  a  general  rule,  that  in  making  or 
refusing  the  appointment  of  a  receiver,  the  court  will 

Grimm,  110  N.  C.  230,  14  S.  E.  684  (refusing  to  discharge  receiver); 
American  Biscuit  &  Mfg.  Co.  v.  Klotz,  44  Fed.  721  (appointing  re- 
ceiver of  "trust  monopoly"). 

13  Lawrence  Iron-Works  Co.  v.  Rockbridge  Co.,  47  Fed.  755;  Me- 
Creery  v.  Berney  Nat.  Bank,  116  Ala.  224,  67  Am.  St.  Eep.  105,  22 
South.   577. 

14  Warren  v.  Pitts,  114  Ala.  65,  21  South.  494;  Thompson  v.  Tower 
Mfg.  Co.,  87  Ala.  733,  6  South.  928;  Irwin  v.  Everson,  95  Ala.  64,  10 
South.  320;  Stillwell  v.  Savannah  Grocery  Co.,  88  Ga.  100,  13  S.  E.  963; 
Chase's  Case,  1  Bland  (Md.),  206,  213,  17  Am.  Dec.  277. 

15  Mead  v.  Burk,  156  Ind.  577,  60  N.  E.  338.  In  this  case  the 
court  holds  that  "insolvency  of  a  person  in  the  possession  or  en- 
joyment of  the  use  of  property  for  which  a  receiver  is  sought  is  not, 
as   a   general   rule,   indispensable   to   a   successful   prosecution   of   the 

application The     probability   of   a     fierce    and     long-continued 

litigation  in  respect  to  the  rights  of  property  will  sometimes  justify 
a  court  in  withdrawing  it  from  the  operation  of  such  prolonged  con- 
test by  placing  it  for  preservation  or  security  in  charge  of  a  receiver 
for  the  benefit  of  all  parties  concerned  therein,  until  there  can  be  a 
full  and  final  adjudication  of  their  rights";  citing  Crane  v.  McCoy, 
1  Bond,  422,  Fed.  Cas.  No.  3354.  To  the  effect  that  the  insolvency  of 
the  debtor  is  necessary  to  justify  the  appointment,  when  the  collec- 
tion of  a  debt  is  the  sole  purpose  of  the  suit,  see  Joseph  Dry  Goods 
Co.  V.  Hecht,  120  Fed.  760,  57  C.  C.  A.  64. 


§  67  EQUITABLE    EEMEDIES.  112 

not  forestall  or  anticipate  the  decision  which  may  be 
made  on  final  hearing,  yet  the  primary  inquiry  is 
whether  there  is  shown  a  reasonable  probability  that 
the  plaintiff  asking  the  appointment  will  ultimately 
succeed  in  obtaining  the  general  relief  sought  by  the 
suit.  If  ultimate  success  is  a  matter  of  grave  doubt, 
or  if  it  be  clear  that  the  general  relief  sought  cannot 
be  obtained,  the  appointment  ought  not  to  be  made.^^ 
This  principle,  however,  does  not  involve  the  necessity 
that  the  pleadings  be  drawn  with  technical  accuracy. 
The  bill  may  be  subject  to  demurrer  for  the  want  of 
proper  parties,  or  because  of  defects  of  form  or  the  ab- 
sence of  substantial  allegations, — insufficiencies  cura- 
ble by  amendment.  These  insufficiencies,  of  themselves, 
do  not  form  an  impediment  to  the  appointment  of  a 
receiver,  if  a  case  be  made  by  a  party  having  inter- 
ests to  be  protected  and  preserved  entitling  him  to 
the  general  relief  which  is  prayed.^'^ 

§  67.  Caution  Observed  in  Making  the  Appointment. — 
The  appointment  of  a  receiver  is  one  of  the  most  re- 
sponsible duties  which  a  court  of  equity  is  called  upon 
to  perform ;  and  while  resting  within  the  sound,  judicial 
discretion  of  the  court,  the  power  is,  or  should  be,  exer- 

16  Pom.  Eq.  Jur.,  §  1331;  Bank  of  Florence  v.  United  States  Sav- 
ings &  Loan  Co.,  104  Ala.  297,  16  South.  110;  Eandle  v.  Carter,  62 
Ala.  95.  See,  to  the  same  effect,  Owen  v.  Homan,  3  Macn.  &  G-.  378, 
412,  affirmed  4  H.  L.  Gas.  997,  quoted  in  4  Pom.  Eq.  Jur.,  §  1331, 
note  2;  Bainbrigge  v.  Baddeley,  3  Macn.  &  G.  413;  Kelley  v, 
Boettcher,  89  Fed.  125,  129;  People  v.  Weigley,  155  111.  491,  40  N.  E. 
300;  Mead  v.  Burk,  156  Ind.  577,  60  N.  E.  338;  Sheridan  Brick  Works 
V.  Marion  Trust  Co.,  157  Ind.  292,  87  Am.  St.  Eep.  207,  61  N.  E.  666; 
Pelzer  v.  Hughes,  27  S.  C.  408,  3  S.  E.  781;  Norris  v.  Lake,  89  Va. 
513,  16  S.  E.  663;  Beecher  v.  Beninger,  7  Blatchf.  170,  Fed.  Cas.  No, 
1222;  Chase's  Case,  1  Bland  (Md.),  206,  213,  17  Am.  Dec.  277. 

17  Bank  of  Florence  v.  United  States  Savings  and  Loan  Co.,  104 
Ala.  297,  16  South.  110;  Ex  parte  Walker,  25  Ala.  81. 


113  APPOINTMENT  OF  EECEIVEES;  IN  GENERAL.  {  67 

cised  with  great  caution  and  circumspection.^®  It  is 
well  said  by  the  supreme  court  of  Alabama:^*  "Prop- 
erty is  not  taken  from  a  party  in  possession,  claiming  in 
good  faith^"  the  right  to  it,  before  judgment  in  actions 
at  law,  without  first  exacting  from  him  at  whose  suit  it 
is  done  ample  security  for  the  protection  of  his  adversary 
against  injury.  In  courts  of  equity,  writs  of  injunction 
and  equitable  attachment  are  allowed  only  upon  like 
conditions.  And  whenever  the  plaintiff's  rights  are  dis- 
puted, the  court  should  rarely  appoint  a  receiver  to  take 
the  property  from  .the  defendant ;  receivers  being  ordi- 
narily appointed  without  bonds  of  indemnity  from  those 
procuring  the  appointment  to  be  made,  and  only  upon  the 
bond  of  the  receiver  for  his  fidelity  as  such.  There  has 
been,  indeed,  too  much  facility  on  the  part  of  chancellors 
and  registers  in  the  exercise  of  this  authority."  The  rea- 
ls Ashurst  V.  Lehman,  86  Ala.  370,  5  South.  731  (receiver  allowed 
in  case  of  mortgaged  crops) ;  note  to  Cameron  v.  Groveland  Imp. 
Co.,  72  Am.  St.  Eep.  34;  Corbin  v.  Thompson,  141  Ind.  128,  40  N.  E. 
533  ("the  power  is  one  of  the  highest  vested  in  a  court  of  chancery 
and  is  only  exercised  where  justice  would  in  all  probability  be  de- 
feated by  withholding  it");  EoUins  v.  Henry,  77  N.  C.  469  (same); 
Gilbert  v.  Block,  51  111.  App.  516;  Williamson  v.  Wilson,  1  Bland 
(Md.),  418;  Holmes  v.  Stix,  104  Ky.  351,  47  S.  W.  243  (this  applies 
in  the  extreme  when  the  property  is  held  jointly). 

19  Briarfield  Iron  Works  v.  Foster,  54  Ala.  622.  This  is  quoted 
approvingly  in  Fort  Payne  Furnace  Co.  v.  Fort  Payne  Coal  &  Iron 
Co.,  96  Ala.  472,  38  Am.  St.  Eep.  109,  11  South.  439  (refusing  to  take 
possession  of  lands  of  a  corporation).  To  same  effect,  Moritz  v. 
Miller,  87  Ala.  331,  6  South.  269  (refusing  a  receiver  on  information 
and  belief);  approved  in  Lindsay  v.  American  Mtg.  Co.,  97  Ala.  412, 
11  South.  770. 

20  Where  the  one  against  whom  the  remedy  is  sought  is  acting 
fraudulently,  it  is  a  common  ground  of  equitable  interference: 
Brundage  v.  Home  Savings  etc.  Assn.,  11  Wash.  277,  39  Pac.  666 
(mortgaged  property);  Mays  v.  Eose,  Freem.  Ch.  (Miss.)  703;  Fur- 
long V.  Edwards,  3  Md.  99  (fraud  must  be  clearly  proved);  William- 
son V.  Wilson,  1  Bland  (Md.),  418. 

Equitable  Remedies,  Vol.  1—8 


9  67  EQUITABLE    EEMEDIES.  114 

son  for  the  necessity  of  exercising  such  great  caution  is 
clearly  stated  by  Baldwin,  J.,  in  Beverly  v.  Brooke  :^^ 
"In  the  exercise  of  this  summary  jurisdiction,  a  court  of 
equity  reverses,  in  a  great  measure,  its  ordinary  course 
of  administering  justice;  beginning  at  the  end,  and  levy- 
ing upon  the  property  a  kind  of  equitable  execution, 
by  which  it  makes  a  general,  instead  of  a  specific,  appro- 
priation of  the  issues  and  profits,  and  afterwards  deter- 
mining who  is  entitled  to  the  benefit  of  its  quasi-pTO- 
cess.  But,  acting,  as  it  often  must  of  necessity,  before 
the  merits  of  the  cause  have  been  fully  developed,  and 
not  infrequently,  where  the  proper  parties  in  interest 
are  not  all  before  the  court,  it  proceeds  with  much 
caution  and  circumspection,  in  order  to  avoid  disturb- 
ing, unnecessarily  or  injuriously,  legal  rights  and  equi- 
table priorities."  McKay,  J.,  in  Crawford  v.  Ross  and 
Ross,  39  Ga.  44,  said:  "The  exercise  of  the  extraordi- 
nary powers  granted  to  the  Chancellor  of  the  appoint- 
ment of  receivers  is  a  very  delicate  and  responsible 
duty.  It  is  a  serious  interference,  without  the  verdict 
of  a  jury  and  without  a  regular  hearing,  with  the  prima 
facie  rights  of  the  citizen,  and  should  only  be  granted 
to  prevent  manifest  wrong."^^ 

21  Beverley  v.   Brooke,  4  Gratt.    (Va.)    187. 

22  Crawford  v.  Koss,  39  Ga.  44.  See,  also,  Blondheim  et  al.  v. 
Moore,  11  Md.  365  (information  and  belief  insufficient);  Mays  v. 
Rose  et  al.  (Miss.),  Freem.  Ch.  703  (rights  of  both  parties  consid- 
ered); Furlong  v.  Edwards,  3  Md.  99  (mortgage);  Fox  v.  Curtis,  34 
Atl.  952,  176  Pa.  St.  52  (partnership  creditors);  State  v.  Eoss,  122 
Mo.  435,  25  S.  W.  947,  23  L,  E.  A.  534  (rights  in  the  insolvency  of 
railroad  corporation).  Atkinson,  J.,  in  Dozier  v.  Logan,  101  Ga. 
173,  28  S.  E.  612,  says:  "The  appointment  of  a  receiver  is  recog- 
nized as  one  of  the  harshest  remedies  which  the  law  provides  for 
the  enforcement  of  rights,  and  is  allowable  only  in  extreme  cases, 
and  under  circumstances  where  the  interest  of  the  creditors  is  ex- 
posed to  manifest  peril.  The  courts,  of  late  years,  are  drifting  away 
from  the  landmark  which  in  former  years  marked  the  line  of  di- 
vision between  the   power  of   chancery  courts  to   seize   the   propertj 


115  APPOINTMENT  OF  EECEIVERS;  IN  GENEEAL.         i  68 

§  68.  Applicant  Must  Come  with  "Clean  Hands"  and 
"Without  Laches. — The  rule  that  one  who  comes  into 
equity  must  come  with  clean  hands  applies  to  an  ap- 
plicant for  a  receiver.2^  An  applicant  for  a  receiver 
must  not  be  guilty  of  laches  before  bringing^^  his  bill, 
or  pending  the  application.^' 

of  an  individual  through  the  instrumentality  of  a  receiver,  and  the 
right  of  the  individual  himself  to  retain  possession  until,  by  the 
judgment  of  the  court,  his  property  could  be  judicially  appropriated 
to  purposes  inconsistent  with  his  individual  possession.  In  the  ex- 
ercise of  the  great  discretionary  power  conferred  upon  our  brethren 
of  the  circuit  bench,  with  respect  to  such  matters,  they  cannot  be 
too  cautious,  and  unless  there  is  immediate  and  present  necessity 
for  such  action,  the  appointment  of  a  receiver  should  be  refused." 
See,  also,  American  Investment  Co.  v.  Ferrar,  87  Iowa,  437,  54  N.  W. 
361  (receiver  of  mortgaged  property  refused);  Clark  v,  Raymond, 
86  Iowa,  61,  53  N.  W.  354  (same);  Roberts  v.  Washington  Nat. 
Bank,  9  Wash.  12,  37  Pac.  26  ("the  court  should  restrict,  rather 
than  extend,  the  growing  tendency"  to  appoint  receivers);  White- 
head V.  Hale,  118  N.  C.  601,  24  S.  E.  360. 

The  rights  of  both  parties  should  be  carefully  considered:  Vose  v. 
Reed,  1  Woods,  650,  Fed.  Cas.  No.  17,011;  Provident  Life  &  T.  Co. 
V.  Keniston,  53  Neb.  86,  73  N.  W.  216  (mortgaged  premises);  Lan- 
caster v.  Asheville  St.  Ry.  Co.,  90  Fed.  129  (railroad  corporation; 
apprehension  of  danger  to  plaintiff  must  be  well  grounded,  and  of 
"immediate"  injury);  Pullan  v.  Cincinnati  etc.  R.  R.  Co.,  4  Biss. 
47,  Fed.  Cas.  No.  11,461  (a  receiver  should  never  be  appointed  in 
case  of  mortgage  foreclosure,  where  the  property  is  certain  to  pro- 
duce the  amount  on  sale).  The  statement  set  forth  in  the  text  has 
been  repeatedly  quoted  as  expressing  the  proper  view:  See  Latham 
v.  Chaffee,  7  Fed.  525;  note  to  Cameron  v,  Groveland  Imp.  Co.,  72 
Am.  St.  Rep.  34. 

23  Thus,  failure,  on  the  part  of  executors,  to  have  a  sale  recorded, 
allowing  the  vendee  in  the  meantime  to  expend  money  in  improve- 
ments, will  defeat  their  right  to  a  receiver:  Bennallack  v.  Richards, 
125  Cal.  427,  58  Pac.  651.  Where  the  object  of  the  applicant  is 
illegal:  American  Biscuit  &  Mfg.  Co.  v.  Klotz,  44  Fed.  721;  Cameron 
V.  Havemeyer,  12  N.  Y.  Supp.  126,  25  Abb.  N.  C.  438  (trust  ad- 
judged illegal,  the  stockholders  have  a  right  to  a  receiver). 

24  Thus,  where  the  injury  occurred  two  years  before  suit  brought, 
appointment  was  refused:  Kean  v.  Colt,  5  N.  J.  Eq.  365. 

25  An  application  having  been  allowed  to  sleep  for  six  years,  was 
dismissed,  though  evidence  had  been  taken  in  the  meantime:   Hood 


Si  69,  70  EQUITABLE  EEMEDIES.  116 

§  69.     Inadeqnacy  of  legal  Remedy It  is  one  of  the 

fundamental  principles  on  which  receivers  are  granted 
that  the  applicant  shall  have  no  plain,  adequate,  and 
complete  remedy  at  law.^^  Therefore,  as  "equity  will 
not  help  those  who  have  power  to  help  themselves,"^'^ 
he  must,  as  a  usual  thing,  have  exhausted  his  legal  reme- 
dies prior  to  his  application  for  equitable  relief.^^  This 
applies  both  to  the  original  chancery  practice  and  to  the 
reformed  procedure.^*  The  objection  to  the  appoint- 
ment being  made  on  these  grounds  should  be  taken  be- 
fore the  appointment.^^ 

§  70.  Bill  Fully  Denied  by  Answer. — It  is  a  well-estab- 
lished rule  that  where  the  equities  of  the  bill  have  been 
fully  met  and  denied  in  every  material  part  by  the  de- 
fendant's sworn  answer,  the  plaintiff  is  not  entitled  to 
the  appointment  of  a  receiver,  unless  he  overcomes  the 

V.  First  Nat.  Bank  of  Fremont,  29  Fed.  55;  Brown  v.  Lake  Superior 
Iron  Co.,  134  U.  S.  530,  10  Sup.  Ct.  604,  33  L.  ed.  1021  (not  allowed 
to  contest  receiver's  right  to  appointment  after  nine  months);  Tib- 
bals  V.  Sargeant,  14  N.  J.  Eq,  449  (delay  of  two  years  after  notice). 

26  Fort  Payne  Furnace  Co.  v.  Ft.  Payne  Coal  &  Iron  Co.,  96  Ala. 
472,  38  Am.  St.  Eep.  109,  11  South.  439;  approved,  Etowah  Min. 
Co.  V.  Wills  Valley  Min.  &  Mfg.  Co.,  106  Ala.  492,  17  South.  522 
(corporation  creditors);  Bennallack  v.  Eicharda  et  al.,  125  Cal.  427, 
58  Pac.  65  ("a  departure  from  the  rule  can  only  be  justified  upon 
strong  grounds  of  judicial  necessity");  Spooner  v.  Bay  St.  Louis 
Syndicate,  44  Minn.  401,  46  N.  W.  848  (corporation  creditors);  Eice 
V.  St.  Paul  etc.  E.  E.  Co.  24  Minn.  467  (receiver  of  railroad);  Cahn 
V.  Johnson,  12  Tex.  Civ.  App.  304,  33  S.  W.  1000. 

27  Sollory  V.  Learer,  L.  E.  9  Eq,  Cas.  22;  Importers'  Nat.  Bank  v. 
Quackenbush,   143  N.  Y.  567,  38  N.  E.  728. 

28  Importers'  etc.  Nat.  Bank  v.  Quackenbush,  143  N.  Y,  567,  38 
N.   E.   728. 

2»  Spooner  v.  Bay  St.  Louis  Syndicate,  44  Minn.  401,  46  N.  W. 
848   (corporation  creditors). 

30  Brown  v.  Lake  Superior  Iron  Co.,  134  U.  S.  530,  10  Sup.  Ct. 
604,  33  L.  ed.  1021  (where  a  bill  was  suffered  to  be  taken  pro  con- 
fCiSO,  defendant   could  not  object  nine  months  later). 


117  APPOINTMENT  OF  EECEIVERS;  IN  GENERAL.         S   71 

denials  by  such  further  proof  as  will  tend  to  establish 
his  bill.^^  The  usual  weight  allowed  to  answers  in 
chancery  is  due  the  defendant  in  this  class  of  cases,^^ 
and  they  are  conclusive  until  overcome  by  testimony.^* 

§  71.  Must  be  a  Suit  Pending — The  appointment  of  a 
receiver  being  made  merely  to  assist  in  the  ultimate 
disposition  of  the  property  in  controversy,  a  receiver 
will  not  ordinarily^^  be  appointed  unless  there  is  a  suit 
pending,  concerning  the  subject-matter  in  regard  to 
which  the  receiver  is  sought.^ ^     Thus  an  application  by 

31  Sweeny  v.  Mayhew,  6  Idaho,  455,  56  Pac.  85;  Crombie  v.  Or- 
der of  Solon,  157  Pa.  St.  588,  27  Atl.  710  (bill  alleging  illegality  of 
corporation  election);  Henn  v.  Walsh,  2  Edw.  Ch.  (N,  Y.)  129  (part- 
nership) ;  Whitehouse  v.  Point  Defiance  T.  &  E.  Ey.  Co.,  9  Wash. 
558,  38  Pac.  152  (stating  the  reason  to  be  that  "the  plaintiff,  hav- 
ing addressed  himself  to  the  conscience  of  the  defendant,  has  made 
him  a  witness,  and  must  take  his  answer  as  true,  unless  he  can 
overcome  it");   Wilson  v.   Maddox,  46  W.   Va.   641,   33   S.   E.   775. 

32  Thompson  v.  Diffenderfer,  1  Md.  Ch.  489  (though  the  truth 
of  the  answer  is  attacked  by  the  plaintiff), 

33  Voshell  &  Heaton  v.  Hyman  &  Gross,  26  Ala.  83.  It  haa 
teen  said  that  in  such  a  case  "the  question  is  no  longer  addressed  to 
the  discretion  of  the  court;  but  it  is  a  judicial  error  to  appoint  a 
receiver  when  the  charges  are  thus  met";  Wilson  v.  Maddox,  46 
W.  Va.  641,  33  S.  E.  775;  Sweeny  v.  Mayhew,  6  Idaho,  455,  56 
Pac.   85. 

34  The  case  of  receivers  appointed  over  the  estates  of  lunatics  and 
infants   is   an   exception. 

35  The  suit  must  be  one  of  equitable  cognizance:  Miller  v.  Per- 
kins, 154  Mo.  629,  55  S.  W.  874("jurisdiction  to  appoint  a  receiver 
cannot  be  acquired  simply  by  a  petition  therefor,  nor  by  the  ap- 
pointment of  one").  In  American  Loan  &  Trust  Co.  v.  Toledo  etc. 
Co.,  29  Fed.  416,  it  is  said:  "Whatever  may  be  the  powers  of  a  court 
of  equity  to  construct  railroads  or  manage  them  through  receivers, 
in  form,  at  least,  these  powers  must  be  exercised  as  an  adjunct  to 
the  jurisdiction  of  enforcing  some  of  the  well-understood  equitable 
rights  of  the  parties  in  relation  to  these  contracts."  See  Barber  v. 
Interi^ational  Co.  of  Mexico,  73  Conn.  587,  48  Atl.  758;  Guy  v. 
Doak,  47  Kan.  236,  27  Pac.  968;  Burnes  v.  City  of  Atchison,  48 
Kan.  507,  29  Pac.  579  (a  receiver  will  not  be  appointed  merely  to 
bring-  '^uit);  State  v.  Union  Nat.  Bank,  145  Ind.  537,  57  Am.  St.  Eep. 


S  71  EQUITABLE    EEMEDIES.  118 

"a  debtor  for  the  appointment  of  a  receiver  to  manage 
and  carry  on  its  business,  so  that  the  creditors  cannot 
enforce  their  legal  rights  in  the  courts  of  the  country, 
and  not  a  petition  stating  a  cause  of  action,  either  in 
law  or  equity,  in  which,  as  incident  thereto,  a  receiver 
be  appointed,"  was  dismissed.^^ 

209,  44  N.  E.  585;  In  re  Hancock,  27  Hun,  575  (the  suit  must  be 
pending  in  the  court  where  the  application  is  made) ;  Popp  v,  Daisy 
Gold  Min.  Co.,  27  Utah,  83,  74  Pac.  426  (no  suit  pending);  Grand 
Island  Electric  L.,  I.  &  C.  S.  Co.  (Neb.),  94  N.  W.  136  (not  in  suit 
brought  merely  for  appointment) ;  Hay  v.  McDaniel,  26  Ind.  App. 
683,  60  N.  E.  729  (same).  What  constitutes  the  pendency  of  an  ac- 
tion ia  largely  a  question  of  practice;  but  see  llellebush  v.  Blake, 
119  Ind.  349,  21  N.  E.  976,  where  the  right  to  a  receiver  in  a  legal 
proceeding  being  given  by  statute,  it  was  held  that  though  the 
notice  or  service  was  defective,  and  the  defendant  had  entered  only 
a  special  appearance,  the  action  was  pending.  As  to  service  gener- 
ally, where  the  property  is  within  the  jurisdiction  of  the  chancery 
court,  see  Quarl  v.  Abbett,  102  Ind.  233,  52  Am,  Eep.  662,  1  N.  E. 
476;  Pennoyer  v.  Neff,  95  U.  S.  729,  24  L,  ed.  565.  See  Hardy  v. 
McClellan,  53  Miss.  507  (in  case  of  ex  parte  application);  Mer- 
chants' &  Mfg.  Nat.  Bank  of  Detroit  v.  Kent  Circuit  Judge,  43  Mich, 
292,  5  N.  W.  627  (suit  must  concern  the  property);  approved  in  Jones 
V.  Schall,  45  Mich.  379,  4  N.  W.  68  (criticising  the  appointment  of 
receivers  on  ex  parte  application) ;  Arnold  v.  Bright,  41  Mich.  210, 
2  N.  W.  16  (same) ;  note  to  Cortelyou  v.  Hathaway,  64  Am.  Dec.  at 
482;  Pressley  v,  Harrison,  102  Ind.  19,  1  N,  E.  188;  approved  in 
Sullivan  Election  etc.  Co.  v.  Blue,  142  Ind.  407,  41  N.  E.  805;  Win- 
chester etc.  Co.  V.  Gordon,  143  Ind.  681,  42  N.  E.  914.  That  subse- 
quent filing  of  the  bill,  and  giving  of  the  requisite  bond  by  the  re- 
ceiver, cannot  impart  validity  to  the  void  act  of  his  appointment  be- 
fore the  bill  was  filed,  see  Harwell  v.  Potts,  80  Ala.  70.  Clearly,  a 
receiver  should  not  be  appointed  after  the  action  is  dismissed:  Dale 
V.  Kant,  58  Ind.  584. 

36  State  v.  Eoss,  122  Mo.  435,  25  S.  W.  947;  approved  in  Miller 
▼.  Perkins,  154  Mo.  629,  55  S.  W.  874.  See  Jones  v.  Bank  of  Lead- 
ville,  10  Colo.  464,  17  Pac.  272:  "To  hold  that  courts  of  equity  can 
entertain  jurisdiction  to  appoint  a  receiver  of  property,  as  the 
substantive  ground,  and  ultimate  object  of  the  suit,  on  the  petition 
of  the  owner  of  the  property  to  be  controlled  and  protected,  would 
be  to  make  them  the  administrators  of  every  estate,  the  owners  of 
which  were  either  incapable  or  unwilling  of  administering  them- 
eelvea. "     The    necessary    implication    from    the    cases    seems    to    be 


119  EECEIVERS;  ABSTRACT  OF  STATUTES.         §§  72,73 

§  72.     The  Supreme  Court  of  Judicature  Act,  in  England 

In  England,  since  1873,  the  appointment  of  receivers 
is  regulated  by  §  25,  par.  8,  of  this  act :  "A  mandamus 
or  an  injunction  may  be  granted,  or  a  receiver  appointed 
by  an  interlocutory  order  of  the  court  in  all  cases  in 
which  it  shall  appear  to  the  court  to  be  just  or  conven- 
ient that  such  order  should  be  made;  and  any  such  order 
may  be  made  either  unconditionally  or  upon  such  terms 
and  conditions  as  the  court  shall  think  just."  The  lib- 
eral terms  of  this  statutory  provision  render  the  recent 
English  decisions  on  the  appointment  of  receivers  of 
little  value  as  precedents  to  the  American  practitioner. 
A  few  of  them  are  cited  in  the  note,  by  way  of  illustra- 
tion merely.^'^ 

§  73.  Statutory  Provisions  in  the  United  States. — "In  the 
states  adopting  the  reformed  procedure,  the  codes  of 
procedure  generally  contain  provisions  regulating  the 
appointment  of  receivers."     As  these  general  provisions 

that,  "a  receiver  being  appointed  for  all  the  parties,  he  whose 
property  is  to  be  taken  from  him  and  placed  in  the  power  of  a  re- 
ceiver,-should  be  a  party  to  the  pending  suit":  Baker  v.  Backus 's 
Admrs.,   32   111.   79. 

37  Cummins  v.  Perkins,  [1S99]  1  Ch.  16;  Smith  v.  Port  Dover  etc. 
R.  Co.,  12  Ont.  App.  288;  Mason  v.  Westoby,  L.  R.  32  Ch.  Div.  206; 
but  see  42  Ch.  Div.  590  (receiver  of  mortgaged  property);  Bryant 
V.  Bull,  L.  R.  10  Ch.  Div.  153  (married  women's  contracts);  Taylor 
V.  Eckersley,  L.  R.  2  Ch.  Div.  302  (specific  performance  of  agree- 
ment to  execute  bill  of  sale  of  chattels;  receiver  appointed  on  evi- 
dence of  immediate  danger  of  the  chattels  being  disposed  of).  Re- 
ceivers in  aid  of  judgment  creditors,  by  way  of  "equitable  execu- 
tion," etc.:  Anglo-Italian  Bank  v.  Davies,  L.  R.  9  Ch.  Div.  275 
(to  reach  rents  and  profits  of  mortgaged  lands) ;  Salt  v.  Cooper,  L. 
R.  16  Ch.  Div.  544  (appointment  by  motion  in  the  original  action); 
Westhead  v.  Riley,  L.  R.  25  Ch.  Div.  413  (to  collect  debts  payable 
to  judgment  debtor);  In  re  Coney,  L.  R.  29  Ch.  Div.  993  (to  reach 
equitable  interest  of  judgment  debtor  who  is  out  of  the  jurisdic- 
tion); Manchester  etc.  Banking  Co.  v.  Parkinson,  L.  R.  22  Q.  B. 
Div.  173   (no  receiver  when  no  impediment  to  execution  in  the  ordi- 


§  73  EQUITABLE    EEMEDIES.  120 

vary  somewhat  in  detail,  and  as  a  knowledge  of  the  pre- 
cise terms  of  the  statute  is  frequently  necessary  to  an 
estimate  of  the  value  as  a  precedent  of  the  decisions 
based  thereon,  they  are  given  in  full  in  the  note.  Ref- 
erence is  also  made  to  many  of  the  statutes  authorizing 
the  appointment  in  special  cases,  as  on  the  dissolution 
or  insolvency  of  corporations.  In  a  few  of  the  states, 
however,  these  statutes  are  so  detailed  and  elaborate 
that  a  statement  of  them  would  transcend  the  limits 
of  this  treatise.  Several  of  the  states  have  general  legis- 
lation, briefly  referred  to  below,  on  matters  other  than 
the  appointment;  as,  declaring  who  is  ineligible  (see, 
6.  g.,  Arizona,  Arkansas,  North  Dakota,  Ohio,  Oklahoma, 
South  Dakota,  Utah,  Wyoming);  describing  his  powers 
in  general  terms  (Arizona,  Arkansas,  California,  In- 
diana, Iowa,  Kansas,  Kentucky,  New  York,  North 
Dakota,  Ohio,  Oklahoma,  South  Dakota,  Texas,  Utah, 
Washington,  Wyoming);  authorizing  suits  against  him 
without  leave  of  court  (see  Alabama,  Texas,  Virginia); 
authorizing  suits  by  him  in  his  own  name  (Arkansas, 
California,  and,  generally,  the  states  in  which  the  stat- 
ute defines  his  powers) ;  providing  for  the  investment  of 
funds  (California,  Kansas,  North  Dakota,  Ohio,  Okla- 
homa, South  Dakota,  Texas,  Utah,  Wyoming);  regulat- 
ing the  priority  of  certain  claims  (Indiana,  New  Jersey, 
Oregon,  Texas,  Utah,  Washington,  Wisconsin) ;  regulat- 
ing his  compensation  (Mississippi,  New  York,  North 
Carolina,  West  Virginia),"^ 

nary  way);  Holmes  v.  Millage,  [1893]  1  Q.  B.  551  (ordinarily,  no 
receiver  of  future  earnings  of  the  judgment  debtor) ;  Harris  v.  Beau- 
champ,  [1894]  1  Q.  B.  801  (receiver  only  where  impediment  to  exe- 
cution); Cadogan  v.  Lyric  Theatre,  [1894]  3  Ch.  338;  Tyrrell  v. 
Painton,  [1895]  1  Q.  B.  202  (reversionary  interest  in  personalty). 
38  See  4  Pom.  Eq.  Jur.,  §  1335. 


121  EECEIVEKS;  ABSTEACT  OF  STATUTES.  §  73 

Alabama. — Civ.    Code,   1896. 

§  429:  An  appeal  may  be  taken  from  an  order  appointing  or  refus- 
ing  a   receiver. 

§  799:  May  be  appointed  by  chancellor  in  term  time  or  in  vacation, 
and  by  register  in  vacation.  In  vacation  reasonable  notice  must  be 
given  of  application,  or  good  cause  shown  for  failure  to  give  notice. 

§   801:   Complainant    must    give   bond    before    appointment. 

§  803:  Keceiver  "may  be  sued  in  respect  to  any  act  or  transac- 
tion of  his,  in  carrying  on  the  business  connected  with  such  prop- 
erty in  this  state,"  without  previous  leave  of  court. 

§  1294:  "Upon  decree  of  dissolution  [of  a  corporation],  the  chan- 
cellor shall  appoint  a  receiver  of  all  the  property  and  assets  of  the 
corporation.  The  chancellor  shall  direct  the  receiver  to  collect,  by 
suit  or  otherwise,  all  the  debts  due  the  corporation,  and  sell  prop- 
erty, real  or  personal,  belonging  to  the  corporation,  and  how  he  shall 
make  title  thereto  to  the  purchaser;  the  chancellor  may,  in  his  dis- 
cretion, authorize  the  receiver  to  proceed,  without  suit,  to  sell  any 
or  all  of  the  debts  and  assets  of  the  corporation  at  public  sale  for 
cash,  or  on  such  terms  as  in  his  judgment  the  interests  of  the  parties 
may  require." 

§  1295:   How  selected  on  dissolution;  bond. 

§  1296:  Keceiver  must  pay  debts  in  full  or  ratably.  If  contested, 
determined  as  other  contested  claims  in  chancery.  Eesidue  must  be 
paid  to  stockholders. 

§  821:  In  creditors'  bill,  if  answer  shows  that  defendant  has  any 
property,  court  may  appoint  a  receiver  "with  authority  to  demand, 
«ue  for  and  recover,  or  otherwise  to  reduce  to  possession  such  prop- 
erty, moneys,  effects,  or  choses  in  action;  and  may  require  the  debtor 
to  make  to  such  receiver  all  conveyances,  assignments,  or  transfers, 
which  may  be  necessary  and  proper  to  enable  him  to  receive,  or  to 
sue  for  and  recover  such  property." 

§  25S0:  Court  may  appoint  a  receiver  for  an  insolvent  domestic 
insurance   company. 

Arizona.— Eev.  Stats.    1901,  §§  1532-1541. 

§  1532:  "Judges  of  the  district  courts,  in  term  time  or  in  vaca- 
tioUj  may  appoint  a  receiver  in  suits  pending  in  said  courts,  when 
no  other  adequate  remedy  is  given  by  law  for  the  protection  and 
preservation  of  property,  or  the  rights  of  parties  therein  pending 
litigation   in   respect   thereto." 

§  1533:   Application  must  be  in  writing,  supported  by  affidavit. 

§  1534:  Notice  must  be  given  to  adverse  party. 

§  1535:   Eeceiver's   bond. 

§  1536:  "No  party,  attorney  or  other  person  interested  in  a  suil 
shall   be   appointed   receiver  therein." 

S  1537:  Oath  ajid  bond. 


§  73  EQUITABLE   EEMEDIES.  122 

§  1539:  "The  receiver  shall  have  power,  subject  to  the  control  of 
the  court,  to  bring  and  defend  suits,  to  take  and  keep  possession  of 
the  property,  to  receive  rents,  to  collect  debts  and  generally  to  do 
such  acts  respecting  the  property  as  may  be  authorized  by  the  court.'* 

§  1540:  May  be  removed  at  any  time  and  another  appointed. 

§  1541:  Eules  of  equity  govern  when  not  inconsistent  with  statu- 
tory provisions. 

Arkansas. -Sandel's  &  Hill's  Digest  of  Statutes  (1894),  §§  5964- 
5979.     The   important  provisions  relating  to   the   appointment  are: 

§  5964:  "Whenever  it  shall  not  be  forbidden  by  law,  and  shall  be 
deemed  fair  and  proper  in  any  case  in  equity,  the  court,  judge  or 
chancellor  shall  appoint,"  etc. 

§  5965:  "Such  receiver  may  be  appointed  either  before  or  after 
answer  or  after  a  decree." 

§  5975:  "In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase 
of  property,  or  by  a  creditor  to  subject  any  property  or  fund  to  his 
claim,  or  between  partners  or  others  jointly  owning  or  interested  in 
any  property  or  fund,  on  the  application  of  plaintiff  or  of  any  party 
whose  right  to  or  interest  in  the  property  or  fund  or  the  proceeds 
thereof  is  probable,  and  where  it  is  shown  that  the  property  or  fund 
is  in  danger  of  being  lost,  removed  or  materially  injured,  the  court 
may  appoint  a  receiver  to  take  charge  thereof  during  the  pendency  of 
the  action,  and  may  order  and  coerce  the  delivery  of  it  to  him." 

§  5976:  "In  an  action  by  a  mortgagee  for  the  foreclosure  of  his 
mortgage  and  the  sale  of  the  mortgaged  property,  a  receiver  may, 
m  like  manner,  be  appointed  where  it  appears  that  the  mortgaged 
property  is  in  danger  of  being  lost,  removed  or  materially  injured, 
or  that  the  condition  of  the  mortgage  has  not  been  performed,  and 
that  the  property  is  probably  insufficient  to  discharge  the  mortgage 
debt." 

§  5977:  "No  party  or  attorney,  or  person  interested  in  an  action, 
shall  be  appointed  receiver  therein." 

§  5968:  Eeceiver  may  sue  in  his  own  name,  shall  have  power 
to  employ  attorneys  and  make  to  them  a  reasonable  allowance  for 
services, 

§  5970:  Eeceiver  of  corporation,  partnership,  or  joint  stock  com- 
pany, when  the  order  places  in  his  hands  all  the  rights  and  in- 
terests, etc.,  of  the  same,  shall,  until  further  order  of  the  court,  etc., 
"have  full  possession,  custody  and  control  thereof,  and  shall  be 
vested  with  the  title,  so  far  as  it  shall  be  necessary  to  collect  debts, 
preserve  the  assets  and  property  for  the  benefit  of  creditors  and  all 
persons  interested,  and  may  and  shall  bring  and  prosecute  and  de- 
fend all  suits  in  his  own  name  that  may  be  necessary  for  that  pur- 
pose." 


123        EECEIVEKS;  ABSTEACT  OF  STATUTES.       §  73 

§  5971:  Eeceiver  mentioned  in  last  section  may  be  substituted  in 
pending  suits  by  or  against  the  corporation,  etc. 

§  5973:  May  be  removed  for  failure  to  discharge  any  duty  incum- 
bent upon  them,  or  for  other  sufficient  cause. 

§  5974:  Must  report  every  six  months,  or  oftener,  if  required  by 
court.  Confirmation  of  accounts — conclusive  as  against  all  persons, 
except  in  case  of  actual  fraud. 

§  5979:  Powers. — Same  as  in  California,  except  no  provisions  as  to 
suing  or  defending  in  hig  own  name,  or  as  to  compounding  for  and 
compromising    debts. 

California.— Code  Civ.  Proc,  §  564:  "A  receiver  may  be  appointed 
by  the  court  in  which  an  action  is  pending,  or  by  the  judge  thereof: 

"1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase  of 
property,  or  by  a  creditor  to  subject  any  property  or  fund  to  his 
claim,  or  between  partners  or  others  jointly  owning  or  interested  in 
any  property  or  fund,  on  the  application  of  the  plaintiff,  or  of  any 
party  whose  right  to  or  interest  in  the  property  or  fund,  or  the  pro- 
ceeds thereof,  is  probable,  and  where  it  is  shown  that  the  property 
or  fund  is  in  danger  of  being  lost,  removed,  or  materially  injured; 

"2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his  mort- 
gage and  sale  of  the  mortgaged  property,  where  it  appears  that  the 
mortgaged  property  is  in  danger  of  being  lost,  removed,  or  materially 
injured,  or  that  the  condition  of  the  mortgage  has  not  been  per- 
formed, and  that  the  property  is  probably  insufficient  to  discharge  the 
mortgage  debt; 

"3.  After  judgment,  to  carry  the  judgment  into  effect; 

"4.  After  judgment,  to  dispose  of  the  property  according  to  th© 
judgment,  or  to  preserve  it  during  the  pendency  of  an  appeal,  or  in 
proceedings  in  aid  of  execution,  when  an  execution  has  been  returned 
unsatisfied,  or  when  the  judgment  debtor  refuses  to  apply  his  prop- 
erty in  satisfaction  of  the  judgment; 

"5.  In  the  cases  when  a  corporation  has  been  dissolved,  or  is  insol- 
vent, or  in  imminent  danger  of  insolvency,  or  has  forfeited  its  cor- 
porate   rights; 

"6.  In  all  other  cases  where  receivers  have  heretofore  been  ap- 
pointed by  the  usages  of  courts  of  equity." 

§  565:  Appointment  of  receivers  on  dissolution  of  corporations. 

§  566  authorizes  the  court  to  require  on  an  ex  parte  application, 
an  undertaking  from  the  applicant  to  pay  all  damages  the  defendant 
may  sustain  by  reason  of  the  appointment  of  the  receiver  in  case  the 
applicant  shall  have  procured  the  appointment  wrongfully,  maliciously 
or  without  sufficient  cause. 

§  567:  Oath  and  bond  by  receiver. 

§  568:  Powers  of  receiver. — "The  receiver  has,  under  the  control  of 
the  court,  power  to  bring  and  defend  actions  in  hia  own  name,  as 


S  73  EQUITABLE    EEMEDIES.  124 

receiver;  to  take  and  keep  possession  of  the  property,  to  receive 
rents,  collect  debts,  to  compound  for  and  compromise  the  same,  to 
make  transfers,  and  generally  to  do  such  acts  respecting  the  prop- 
erty as  the  court  may  authorize." 

§  569:  Funds  in  the  hands  of  a  receiver  may  be  invested  upon  in- 
terest, by  order  of  the  court;  but  no  such  order  can  be  made,  except 
upon  the  consent  of  all  the  parties  to  the  action. 

§  963:  An  appeal  lies  from  an  order  appointing  a  receiver. 

§  1270:  May  be  appointed  for  escheated  estates. 

§  1348:   Corporation  may  be  appointed  receiver. 

Colorado. — Mills'  Statutes  (1891),  §  497,  receiver  in  dissolution  of 
corporation  (like  Illinois);  §  3387  (to  prevent  waste  by  surviving 
partner). 

Code  of  Procedure  (1890),  §§  163,  164,  165.— §  163:  "A  receiver 
may  be  appointed  by  the  court  in  which  the  action  is  pending,  or  by 
a  judge  thereof,  or,  pending  proceedings  in  the  supreme  court  upon 
an  appeal  or  writ  of  error,  by  the  court  from  whose  final  judgment 
Buch  appellate  proceedings  are  prosecuted  or  by  the  judge  of  such 
court:  First,  before  judgment,  provisionally,  on  application  of  either 
party,  when  he  establishes  a  prima  facie  right  to  the  property,  or  to 
an  interest  in  the  property,  which  is  the  subject  of  the  action,  and 
which  is  in  the  possession  of  an  adverse  party,  and  the  property,  or 
its  rents  and  profits,  are  in  danger  of  being  lost,  or  materially  injured 
and  impaired.  Second,  after  judgment  to  dispose  of  the  property 
according  to  the  judgment,  or  to  preserve  it  during  the  pending  of  an 
appeal;  and,  third,  in  such  other  cases  as  are  in  accordance  with  the 
practice  of  courts  of  equity  jurisdiction." 

Connecticut. — Gen.  Stats.  1888,  §  1322:  "Eeceivers  of  a  corpora- 
tion, appointed  by  judicial  authority,  shall  have  the  right  to  the  pos- 
session of  all  its  books,  papers  and  property,  and  power  in  their  own 
names,  or  in  its  name,  to  commence  and  prosecute  suits  for  and  on 
behalf  of  said  corporation;  to  defend  all  suits  brought  against  it  or 
them;  to  demand  and  receive  all  evidences  of  debt  and  property  be- 
longing to  it,  and  to  do  and  execute  in  its  name,  or  in  their  names, 
as  such  receivers,  all  other  acts  and  things  which  shall  be  necessary 
or  proper  in  the  execution  of  their  trust;  and  shall  have  all  the  power 
for  any  of  said  purposes  possessed  by  said  corporation."  §  1942 
(receivers  in  winding  up  of  corporations  on  petition  of  stockholders); 
§§  1313-1317  (receivers  of  dissolved  partnerships);  §  1313  (ap- 
pointment); §  1314  (orders  of  court  as  to  the  partnership  property); 
§  1315  (all  the  property  of  the  partnership  vests  in  the  receiver  on 
his  appointment);  §§  1316,  1317  (proceedings  when  property  is  at- 
tached for  claim  against  individual  partner);  §§  1833-1852  (receiv- 
ers of  banks,  savings  banks,  and  trust  companies),  §§  2869-2879  (re- 
ceivers of  life  insurance  companies);  §§  1172-1177  (receivers  of  turn- 
pike and  toll  bridge  companies). 


125  EECEIVEES;  ABSTRACT  OF  STATUTES.  §  75 

Delaware.— Eev.  Stats.  1852,  as  Am.  1893,  p.  686,  c.  90,  §  3: 
Eeceiver  may  bo  appointed  when  surviving  member  of  partnership 
fails  to  file  the  certificate  required  by  law. 

Page  718,  c.  96,  §  21:  "If  a  minor  have  real,  or  personal  property, 
and  no  guardian,  the  court  may  appoint  a  receiver  to  take  charge 
of  such  property  during  its  pleasure;  and  may  make  such  regula- 
tions touching  this  matter,  as  shall  be  deemed  proper. 

' '  It  may  enforce  any  order  made  upon  a  receiver.  Such  receiver 
shall  be  required  to  account  annually,  or  oftener,  and  shall  deposit 
any  balance,  appearing  in  his  hands,  to  be  invested,  or  otherwise 
disposed  of,  for  the  minor's  benefit." 

Florida.— Rev.  Stats.  1892. 

§  1211:  May  be  appointed  on  application  of  judgment  creditor, 
for  corporation,  when  execution  returned  unsatisfied  in  whole  or  in 
part. 

§  2107:  May  be  appointed  for  estate  of  infant  when  property  has 
been  managed  by  one  not  a  guardian,  and  there  is  no  legal  guardian. 

§  2157:  May  be  appointed  on  voluntary  dissolution  of  insolvent 
corporation,  at  suit  of  three  creditors. 

§  2192:  May  be  appointed  at  suit  of  comptroller  when  bank  in- 
solvent,  or   ofiicers   violate   law. 

Georgia.— Code  1895,  §§  1970,  1971  (receivers  of  banks);  §§  2324, 
2325  (liability  of  railroad  receivers  for  injury  to  employees;  see  91 
Ga.  731);  §  2333  (duties  of  railroad  receivers);  §§  2716-2722  (re- 
ceivers for  insolvent  traders);    §§  '^COJ-4912    (receivers  iu  general). 

The  general  provisions  relating  to  the  appointment  are: 

§  4900:  "When  any  fund  or  property  may  be  in  litigation,  and  the 
rights  of  either  or  both  parties  cannot  otherwise  be  fully  protected, 
or  when  there  may  be  a  fund  or  property  having  no  one  to  manage 
it,  a  receiver  of  the  same  may  be  appointed  (on  a  proper  case  nia.ie) 
by  the  judge,"  etc. 

§  4901:  "Courts  of  equity  shall  have  authority  to  appoint  re- 
ceivers to  take  possession  of  and  protect  trust  or  joint  property  and 
funds,  whenever  the  danger  of  destruction  and  loss  shall  require 
Buch    interference." 

§  4904:  "A  court  of  equity  may  appoint  a  receiver  to  take  posses- 
sion of,  and  hold  subject  to  the  direction  of  the  court,  any  assets 
charged  with  the  payment  of  debts,  where  there  is  manifest  danger 
of  loss,  or  destruction  or  material  injury  to  those  interested.  Under 
extraordinary  circumstances,  a  receiver  may  be  appointed  before  and 
without  notice  to  the  trustee  or  other  person  having  charge  of  the 
assets.  The  terms  on  which  a  receiver  is  appointed  shall  be  in  the 
discretion  of  the  chancellor." 

See,  also,  §  2855  (receiver  of  excess  of  homestead  applicant's  real 
estate) ;   §   1886   (receivers  on  dissolution  of  corporations). 


§  73  EQUITABLE    EEMEDIES.  126 

Idaho.— See  Code  of  Civil  Procedure  (1901),  §§  3318-3323  (general 
provisions);   §  3947   (receivers  in  insolvency  proceedings). 

The  grounds  of  appointment  are  the  same  as  in  the  California  Code. 

Illinois. — Hurd's  Kevised  Statutes  (1899),  c.  32,  §  25  (receivers  of 
corporations);  c.  73,  §  15  (receiver  on  dissolution  of  insurance  com- 
panies); c.  62,  §  24  f receiver  in  garnishments);  c.  32,  §  127  (of  co- 
operative associations). 

Indiana.— Horner 's  Rev,  Stats.  (1896),  §§  1222-1231  (general  pro- 
visions); §  3012  (on  expiration  of  charter  of  corporation);  §  3736 
(of  insurance  company) ;  §  1270  (receiver,  in  replevin,  of  property 
having  a  peculiar  value);  §§  6049,  6050  'receiver  of  partnership 
on  death  of  partner);  §  5134  (receiver  in  wife's  suit  for  support). 

The  provisions  relating  to  grounds  of  appointment  are  somewhat 
fuller  than  those  usually  found  in  the  codes,  and  the  interpretation 
put  upon  them  by  the  courts  is  liberal;  in  fnct,  such  an  effect  is 
given  to  subdivision  seventh  of  §  1222  as  frequently  to  render  the 
Indiana  cases  unsafe  authority  in  other  jurisdictions. 

§  1222:  "A  receiver  may  be  appointed  by  the  court,  or  the  judge 
thereof  in  vacation  in  the  following  cases: 

"First.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase 
of  property,  or  by  a  creditor  to  subject  any  property  or  fund  to  his 
claim. 

"Second.  In  actions  between  partners,  or  persons  jointly  interested 
in  any  property  or  fund, 

"Third.  In  all  actions,  when  it  is  shown  that  the  property,  fund, 
or  rents  and  profits  in  controversy  is  in  danger  of  being  lost,  removed, 
or  materially  injured. 

"Fourth.  In  actions  by  a  mortgagee  for  the  foreclosure  of  a  mort- 
gage and  the  sale  of  the  mortgaged  property,  when  it  appears  that 
such  property  is  in  danger  of  being  lost,  removed,  or  materially  in- 
jured; or  when  such  property  is  not  sufficient  to  discharge  the  mort- 
gaged debt — to  secure  the  application  of  the  rents  and  profits  accru- 
ing before  a  sale  can  be  had. 

"Fifth.  When  a  corporation  has  been  dissolved,  or  is  insolvent,  or 
is  in  imminent  danger  of  insolvency,  or  has  forfeited  its  corporate 
rights. 

' '  Sixth.  To  protect  or  preserve,  during  the  time  allowed  for  redemp- 
tion, any  real  estate  or  interest  therein  sold  on  execution  or  order 
of  sale,  and  to  secure  to  the  person  entitled  thereto  the  rents  and 
profits  thereof, 

"Seventh.  And  in  such  other  cases  as  may  be  provided  by  law;  or 
where,  in  the  discretion  of  the  court,  or  the  judge  thereof  in  vaca- 
tion, it  may  be  necessary  to  secure  ample  justice  to  the  parties." 

§  1228:  Powers  of  receiver, — Like  Arkansas,  except  that  after 
"debts"  is  added,  "in  his  own  name." 


127  BECEIYERS;  ABSTRACT  OF  STATUTES.  5  73 

§  5206:  Debts  owing  laborers  or  employees  are  preferred  debts. 

Iowa.— Annotated  Code  (1897),  §§  3822-3825  (general  provisions); 
§  3904  (for  joint  or  partnership  property  taken  under  attachment); 
§  3978  (for  same,  taken  under  execution);  §  3988  (for  mortgaged 
personal  property  taken  under  execution);  §  4077  (in  proceedings, 
auxiliary  to  execution) ;  §  1640  (receiver  on  dissolution  of  corpora- 
tions); §  1731  (on  dissolution  of  insurance  companies);  §§  1777-1795 
(on  dissolution  of  life  insurance  companies);  §  1877  (of  insolvent 
bank). 

The  general  provision  relating  to  the  appointment  is: 

§  3822:  "On  petition  of  either  party  to  a  civil  action  or  proceed- 
ing, wherein  he  shows  that  he  has  a  probable  right  to,  or  interest  in, 
any  property  which  is  the  subject  of  the  controversy,  and  that  such 
property,  or  its  rents  or  profits,  are  in  danger  of  being  lost  or  ma- 
terially injured  or  impaired,  and  on  such  notice  to  the  adverse  party 
as  the  court  or  judge  shall  prescribe,  the  court,  or,  in  vacation,  the 
judge  thereof,  if  satisfied  that  the  interests  of  one  or  both  parties 
will  be  thereby  promoted,  and  the  substantial  rights  of  neitlier  un- 
duly infringed,  may  appoint  a  receiver  to  take  charge  of  and  con- 
trol such  property  under  its  direction  during  the  pendency  of  the 
action,  and  may  order  and  coerce  the  delivery  of  it  to  him.  Upon 
the  hearing  of  the  application,  affidavits,  and  such  other  proof  as  the 
court  or  judge  permits,  may  be  introduced,  and  upon  the  whole  case 
such  order  made  as  will  be  for  the  best  interest  of  all  parties  con- 
cerned." 

§  3824:  Powers  of  receivers. — Similar  to  Arkansas. 

§  3825:  Priority  of  liens. — Persons  having  liens  upon  the  property 
placed  in  the  hands  of  a  receiver  shall,  if  there  is  a  contest  as  to 
their  priority,  submit  them  to  the  court  for  determination. 

Kansas.— Eev.  Stats.  1901,  §§  4701-4707;  Code,  §§  254-260. 

§  254:  Appointment  of  receivers. — Similar  to  California  provision, 
with  following  exceptions:  The  fifth  subdivision  reads  as  follows: 
"In  the  cases  provided  in  this  code,  or  by  special  statutes,  when  a 
corporation  has  been  dissolved,  or  is  insolvent  or  in  imminent  danger 
of  insolvency,  or  has  forfeited  its  corporate  rights."  An  additional 
subdivision,  numbered  7,  providing  for  the  appointment  of  a  re- 
ceiver at  suit  of  the  state  or  of  an  officer  for  the  collection  of  a  tax 
from  a  toll-bridge  company,  is  added. 

§  255:  Oath  and  bond. 

§  257:  Powers. — Same  as  in  California. 

§  258.  Investment  of  funds. — Same  as  in  California  (Cal.  Code 
Civ.  Proc,  §  569). 

§  207:  Receiver  may  be  appointed  to  take  charge  of  attached  prop- 
erty in  custody  of  the  sheriff. 


§  73  EQUITABLE   EEMEDIES.  12S 

Kentucky.— Carroll's  Code  (1888),  §§  298-302  (general  provisions); 
§  218  (to  take  charge  of  attached  property) ;  Bullitt  &  Feland  's  Gen- 
eral Statutes  (1887),  p.  675  (receiver  of  property  conveyed  in  con- 
templation of  insolvency);  p.  852  (receiver  where  waste  is  committed 
pending  an  action  to  recover  or  charge  land);  p.  719  (receiver  of 
estate  of  female  under  sixteen  years  of  age,  who  marries  without 
consent  of  parent,  etc). 

The  general  provisions  relating  to  the  appointment  are: 

§  298:  "On  the  motion  of  any  party  to  an  action  who  shows  that 
he  has,  or  probably  has,  a  right  to,  a  lien  upon,  or  an  interest  in, 
any  property  or  fund,  the  right  to  which  is  involved  in  the  action, 
and  that  the  property  or  fund  is  in  danger  of  being  lost,  removed,  or 
materially  injured,  the  court,  or  the  judge  thereof  during  vacation, 
may  appoint  a  receiver  to  take  charge  of  the  property  or  fund  dur- 
ing the  pendency  of  the  action,  and  may  order  and  coerce  the  de- 
livery of  it  to  him." 

§  299:  Keceiver  in  mortgage  foreclosure;  similar  provision  to  that 
of  California. 

§  302:  Powers  of  receiver. — Like  Arkansas. 

Maine. — Eev.  Stats.  1903,  p.  447  (receivers  on  dissolution  of  cor- 
poration); pp.  497,  498  (receivers  for  casualty  companies);  pp.  485,. 
506  (receivers  for  insurance  company);  pp.  529,  530,  (receivers  for 
railroads);  p.  460  (receivers  for  savings  banks);  p.  468  (receivers  for 
loan  and  building  associations). 

Maryland. — Pub.  Gen.  Laws,  1904,  p.  226,  art.  5,  §  27  (order  ap- 
pointing or  refusing  receiver  is  appealable) ;  pp.  697-699,  art.  23,  ^ 
381  fE  (receivers  upon  dissolution  of  corporations). 

Massachusetts. — Eev.  Laws,  1902,  c.  144,  p.  1304  ff  (receivers  may 
be  appointed  to  take  charge  of  property  of  absentees) ;  c.  167,  §  126,. 
p.  1517  (appointment  of  receiver  dissolves  attachment);  c.  109,  §§ 
54  ff,  p.  957  (receivers  upon  dissolution  of  corporations) ;  c.  118,  § 
7,  p.  1123  (receivers  for  insolvent  insurance  corporations);  c.  113, 
§  6,  p.  1066  (receivers  for  insolvent  savings  banks);  c.  116,  §  18,  p. 
1112  (trust  companies  may  act  as  receivers). 

Michigan.— Comp.  Laws,  1897,  §§  7091,  7249,  7282-7283,  7301,  7316, 
7331,  7396,  7518,  7600,  9552,  9765-9770,  9963,  10859-10888  (receiver* 
for  various  corporations). 

Minnesota.— Kelly 's  Stats.  (1891),  §  5044:  "A  receiver  may  be  ap- 
pointed: 

"First.  Before  judgment,  on  the  application  of  either  party,  when 
he  establishes  an  apparent  right  to  property  which  is  the  subject 
of  the  action,  and  which  is  in  the  possession  of  an  adverse  party,, 
and  the  property  or  its  rents  and  profits  are  in  danger  of  being  lost. 


129  EECEIVEESj  ABSTRACT  OF  STATUTES.  §  73 

or  materially  injured  or  impaired,  except  in  cases  where  judgment 
upon  failure  to  answer  may  be  had  without  application  to  the  court; 

"  Secotid.     After  judgment,  to  carry  the  judgment  into  effect; 

"Third.  After  judgment,  to  dispose  of  the  property  according  to 
the  judgment,  or  to  preserve  it  during  the  pendency  of  an  appeal, 
or  when  an  execution  has  been  returned  unsatisfied,  and  the  judg- 
ment debtor  refuses  to  apply  his  property  in  satisfaction  of  the 
judgment; 

"Fourth.  In  the  cases  provided  by  law,  when  a  corporation  has 
been  dissolved,  or  is  insolvent,  or  in  imminent  danger  of  insolvency, 
or  has  forfeited  its  corporate  rights;  and,  in  like  cases,  of  the  prop- 
erty, within  this  state,  of  foreign  corporations; 

"Fifth.  In  such  other  cases  as  are  now  provided  by  law,  or  may 
be  in  accordance  with  the  existing  practice,  except  as  otherwise  pro- 
vided herein." 

See,  a!so,  §  4263  (act  1881,  c.  148,  §  2),  (receiver  of  insolvent 
debtor);  §  4966  (receiver  in  proceedings  supplementary  to  execution); 
§  4968  (action  by  such  receiver  against  an  adverse  claimant);  §  5341 
(receiver  on  judgment  of  exclusion  from  corporate  rights);  §  313S 
(receiver  on  dissolution  of  corporation);  §  5575  (on  forfeiture  of 
charter  of  banking  and  insurance  companies);  §  5572  (on  applica- 
tion of  judgment  creditors  of  corporation). 

Mississippi. — Annotated  Code,  1892. 

§  574:  Eeceiver  not  appointed  without  notice,  "unless  it  shall  ap- 
pear that  an  immediate  appointment  is  necessary,  or  good  cause  be 
shown  for  not  giving  notice." 

§  575:  Bond  upon  appointment  of  ex  parte  receiver. 

§  576:  Removal. 

§  577:  "Receivers  shall  be  subject  to  the  orders,  instructions  and 
decrees  of  the  court,  and  of  the  chancellor  in  vacation;  and  they,  or 
any  party  in  interest,  may  apply  therefor  in  term  time,  or  to  the 
chancellor  in  vacation,  or  for  modifications  of  previous  orders  or  in- 
structions; and  obedience  thereto  may  be  enforced  by  attachment." 

§  578:   Bond  in  lieu   of  receiver. 

§  579:  Bond  of  receiver, 

§  581:  "In  all  cases  in  which  it  may  be  thought  to  be  necessary 
for  the  protection  of  estates  of  decedents,  minors  and  persons  of  un- 
sound mind,  a  receiver  may  be  appointed,  either  by  the  court  or  by 
the  chancellor  in  vacation,  subject  to  the  foregoing  conditions." 

§  582:  "Receivers  shall  be  entitled  to  have  such  compensation  for 
their  services  as  the  court  shall  allow,  and  shall  have  a  lien  upon  the 
property  in  their  hands  for  the  payment  thereof,  and  of  their  neces- 
sary expenses.  The  court  shall  make  such  order  to  compel  the  pay- 
ment thereof  as  may  be  just  and  necessary,  and  may  decree  the  pay- 
ment thereof  by  any  of  the  parties  as  a  portion  of  the  costs  of  suit." 
Equitable  Remedies,  Vol.  1—9 


§  73  EQUITABLE    EEMEDIES.  130 

Missouri. — Rev.  Stats.  (1899),  §§  753-755.  Power  is  given  to  ap- 
point  "whenever  such  appointment  shall  be  deemed  necessary." 

§  754:  "Such  receiver  shall  give  bond,  and  have  the  same  powers 
and  be  subject  to  all  the  provisions,  as  far  as  they  may  be  applicable, 
enjoined  upon  a  receiver  appointed  by  virtue  of  the  law  providing 
for  suits  by  attachment." 

Montana.— Code  of  Civil  Procedure  (1895),  §§  950,  956,  same  as 
California;  Civil  Code  (1895),  §  727  (receiver  of  accident  insurance 
company);  §§  830,  832  (for  building,  loan  and  savings  company). 

Nebraska.— Code  of  Civil  Procedure  (1899),  §§  266-276. 

§  266:  Like  Montana,  omitting  (party)  "whose  right  to,  or  interest 
in,  the  property  or  fund,  is  probable."  Also,  omitting  "in  proceed- 
ings in  aid  of  execution,"  etc.;  and  "in  cases  where  a  corporation  has 
been  dissolved,"  etc. 

§§  267,  268:  Suit  must  be  pending;  notice  of  the  application  re- 
quired; sheriff  to  take  possession  of  the  property  when  delay  is 
hazardous. 

§  269:  Applicant  required  to  give  bond. 

§  272:  The  order  of  appointment  to  contain  special  directions  as 
to  his  powers  and  duties. 

§  273:  "Every  receiver  shall  be  considered  the  receiver  of  any 
party  to  the  suit,  and  no  others." 

§  274:  Appointment  without  notice  is  void. 

§  275:  Effect  of  decree  not  finally  determining  the  rights  of  the 
parties;  and  appeal. 

See,  also,  §§  213-217  (receiver  in  attachment);  §§  542,  543  (in  pro- 
ceedings supplementary  to  execution);  Compiled  Statutes  (1899),  c. 
8,  §§  34,  35  (receivers  of  banks);  c.  28,  §  16a  (compensation  of 
receivers). 

New  Jersey.— Gen.  Stats.  1895. 

Page  918:  Eeceivers  may  be  appointed  to  wind  up  corporation. 

Pages  2688,  2689:  May  be  appointed  for  railroad  which  fails  to 
run  its  trains  for  ten  days. 

Page  974:  Eeceiver  of  railroad  may  operate  the  road;  "and  all  ex- 
penses incident  to  the  operation  of  said  railroad  shall  be  a  first  lien 
on  the  receipts,  to  be  paid  before  any  other  incumbrance  whatever." 

Page  974:  Leases  by  railroad  receivers. 

Page  2688:  "That  whenever  the  chancellor  shall  appoint  a  receiver 
of  any  railroad  company,  said  receiver  shall  apply  all  unincumbered 
personal  effects  and  all  moneys  which  may  be  transferred  to  him  at 
the  time  of  entering  upon  his  duties  as  such  receiver,  toward  the 
payment  of  wages  at  that  time  due  the  employees  of  said  company, 
and  the  chancellor  may,  from  time  to  time,  make  such  orders  as  he 
may  deem  proper  to  equitably  carry  out  the  provisions  of  this  sec- 
tion; provided,  that  no  such  payments  shall  be  made  for  more  than 
two  months'  wages." 


131  EECEIVEES;  ABSTEACT  OF  STATUTES.  S  73 

Page  353:  Eeceivers  for  cemetery  associations. 

Page  1755:  Eeceivers  for  life  insurance  corporationg. 

Page  3011:  Eeceivers  for  savings  tanks. 

New  York, — ^Stover's  Annotated  Code  of  Civil  Procedure,  1902. 

§  713:  "In  addition  to  the  cases,  where  the  appointment  of  a  re- 
ceiver is  specially  provided  for  by  law,  a  receiver  of  property,  which 
is  the  subject  of  an  action,  in  the  supreme  court  or  a  county  court, 
may  be  appointed  by  the  court,  in  either  of  the  following  cases: 

"1.  Before  final  judgment,  on  the  application  of  a  party  who  es- 
tablishes an  apparent  right  to,  or  interest  in,  the  property,  where 
it  is  in  the  possession  of  an  adverse  party,  and  there  is  danger  that 
it  will  be  removed  beyond  the  jurisdiction  of  the  court  or  lost,  ma- 
terially injured  or  destroyed. 

"2.  By  or  after  the  final  judgment,  to  carry  the  judgment  into 
effect,  or  to  dispose  of  the  property,  according  to  its  directions. 

"3.  After  final  judgment,  to  preserve  the  property,  during  the 
pendency  of  an  appeal.  The  word  'property,'  as  used  in  this  sec- 
tion, includes  the  rents,  profits,  or  other  income,  and  the  increase,  of 
real  or  personal  property." 

§  714:  Notice  of  application  must  be  given,  unless  defendant  has 
failed  to  appear  or  service  of  summons  is  by  publication. 

§  715:  Bond  of  receiver. 

§  716:  "A  receiver,  appointed  by  or  pursuant  to  an  order  or  a 
judgment,  in  an  action  in  the  supreme  court,  or  a  county  court,  or  in 
a  special  proceeding  for  the  voluntary  dissolution  of  a  corporation, 
may  take  and  hold  real  property,  upon  such  trusts  and  for  such  pur- 
poses as  the  court  directs,  subject  to  the  direction  of  the  court,  from 
time  to  time,  respecting  the  disposition  thereof." 

§  1772:  May  be  appointed  in  action  for  divorce  to  enforce  pay- 
ment of  alimony. 

§  1788:  May  be  appointed  in  action  to  dissolve  corporation. 

§  1789:  Powers  of  such  receiver. 

§  1810:  "A  receiver  of  the  property  of  a  corporation  can  be  ap- 
pointed only  by  the  court,  and  in  one  of  the  following  cases: 

"1.  An  action,  brought  as  prescribed  in  article  second,  third,  or 
fourth  of  this  title.  [Actions  against  directors,  etc.,  for  misconduct; 
actions  to  dissolve;  actions  by  the  people  to  annul.] 

"2.  An  action  brought  for  the  foreclosure  of  a  mortgage  upon  the 
property,  of  which  the  receiver  is  appointed,  where  the  mortgage 
debt,  or  the  interest  thereupon,  has  remained  unpaid,  at  least  thirty 
daj-s  after  it  was  payable,  and  after  payment  thereof  was  duly  de- 
manded of  the  proper  officer  of  the  corporation;  and  where  either 
the  income  of  the  property  is  specifically  mortgaged,  or  the  property 
itself  is  probably  insufficient  to  pay  the  mortgage  debt. 


S  73  EQUITABLE   EEMEDIES.  132 

"3.  An  action  brought  by  the  attorney -general,  or  by  a  stockholder, 
to  preserve  the  assets  cf  a  corporation,  having  no  officer  empowered 
to  hold  the  same. 

"4.  A  special  proceeding  for  the  voluntary  dissolution  of  a  cor- 
poration. 

"Where  the  receiver  is  appointed  in  an  action,  otherwise  than  by 
or  pursuant  to  a  final  judgment,  notice  of  the  application  for  his  ap- 
poiatmont,  must  be  given  to  the  proper  officer  of  the  corporation." 

§  1877:   May  be  appointed  in  judgment  creditor's  action. 

§§  24G4-2471:  Eeceivers  in  supplementary  proceedings. 

§  3320:  "A  receiver,  except  as  otherwise  specially  prescribed  by 
statute,  is  entitled,  in  addition  to  his  lawful  expenses,  to  such  com- 
missions, not  exceeding  five  per  centum  upon  the  sums  received  and 
disbursed  by  him,  as  the  court  by  which,  or  the  judge  by  whom  he 
is  appointed,  allows." 

North  Carolina. — Clark's  Code  of  Civil  Proc. 

§  379:  "A  receiver  may  be  appointed: 

"(1)  Before  judgment,  on  the  application  of  either  party,  when 
he  establishes  an  apparent  right  to  property  which  is  the  subject  of 
the  action  and  which  is  in  the  possession  of  an  adverse  party,  and 
the  property  or  its  rents  and  profits  are  in  danger  of  being  lost  or 
materially  injured  and  impaired,  except  in  cases  where  judgment 
upon  failure  to  answer  may  be  had  on  application  to  the  court. 

"(2)   After  judgment,  to  carry  the  judgment  into  effect. 

"(3)  After  judgment,  to  dispose  of  the  property  according  to  the 
judgment,  or  to  preserve  it  during  the  pendency  of  an  appeal,  or  wheu 
an  execution  has  been  returned  unsatisfied,  and  the  judgment  debtor 
refuses  to  apply  his  property  in  satisfaction  of  the  judgment. 

"(4)  In  cases  ....  when  a  corporation  has  been  dissolved,  or  is 
insolvent,  or  in  imminent  danger  of  insolvency,  or  has  forfeited  its 
corporate  rights,  and  in  like  cases  of  the  property  within  this  state 
of  foreign  corporations.  Eeceivers  of  the  property  within  this  state 
of  foreign  or  other  corporations  shall  be  allowed  such  commissions 
as  may  be  fixed  by  the  judge  appointing  them,  not  exceeding  five 
per  cent,  on  the  amount  received  and  disbursed  by  them." 

Appointment  of  receiver  may  be  refused  when  the  subject  of  the 
action  is  the  recovery  of  a  money  demand  and  a  bond  is  tendered. 

§  383:  Bond  of  receiver. 

§  494:  Appointment  in  proceedings  supplementary  to  execution. 

North  Dakota.— Eevised  Code,  1899. 

§  5403:  Appointment  of  receivers.— Same  as  Cal.  Code  Civ.  Proc,  § 
564,  but  adding  to  subdivision  5,  "and  in  like  cases  within  this  state, 
of  foreign  corporations." 

§  5404:  "No  party  or  person  interested  in  an  action  can  be  ap- 
pointed receiver  therein   without   the  written  consent   of  the   party 


133  RECEIVERS;  ABSTRACT  OF  STATUTES.  S  73 

filed  with  the  clerk."  If  appointed  upon  ex  parte  application  comrt 
may  require  a  bond  of  the  party  seeking  its  aid. 

§  5405:  Oath  and  bond  of  receiver. 

§  5406:  Powers. — Same  as  Cal.  Code  Civ.  Proc,  §  568. 

§  5407:  Investment  of  funds. — Same  as  Cal.  Code  Civ.  Proc,  i 
669. 

§§  5765,  5770,  5779,  5780:  Receivers  for  corporations. 

§§  5568-5570:  Receivers  in  supplemental  proceedings. 

Ohio. — Bates   Ann.   Stats.    (4th  ed.) 

§  5587:  Appointment  of  receivers. — Same  as  Cal.  Code  Civ.  Proe., 
§  564. 

§  5538:  "No  party,  attorney,  or  person,  interested  in  an  actioa, 
shall  be  appointed  receiver  therein,  except  by  consent  of  the  par- 
ties." 

§  55S9:  Oath  and  undertaking  by  receiver. 

§  5590:  Powers. — Same  as  Cal.  Code  Civ.  Proc,  §  568. 

§  5591:  Investment  of  funds. — Same  as  Cal.  Code  Civ.  Proc,  §  569. 

§§  5539  ff:  Receivers  for  attached  property. 

§§  5656  ff:   Receivers  on  dissolution  of  corporations. 

§  5705:  Receiver  of  husband's  property  in  action  for  divorce. 

§§  3821,  c,  f :  Trust  company  may  act  as  receiver. 

Oklahoma.— Rev.    Stats.    1903. 

§  4441:  Appointment  of  receivers. — ^Same  as  Cal.  Code  Civ.  Proc, 
§   564. 

§  4442:  "No  party  or  attorney,  or  person  interested  in  an  action, 
shall  be  appointed  receiver  therein." 

§  4443:  Oath  and  bond  of  receiver. 

§  4444:  Powers  of  receiver. — Same  as  Cal.  Code.  Civ.  Proc,  §  568. 

§  4445:  Investment  of  funds. — Same  as  Cal.  Code  Civ.  Proc,  §  569. 

§§  4398-4402:  Receivers  for  attached  property. 

§§  4683   ff:    Appointment   in   proceedings   in   aid   of   execution. 

Oregon. — Bellinger  &  Cotton's  Codes  &  Stats. 

§  1080.     Definition  of  receiver. 

§  1081:  "A  receiver  may  be  appointed  in  any  civil  action,  suit, 
or  proceeding,  other  than  an  action  for  the  recovery  of  specific  per- 
sonal   property, 

"1.  Provisionally,  before  judgment  or  decree,  on  the  application 
of  either  party,  when  his  right  to  the  property,  which  is  the  sub- 
ject of  the  action,  suit,  or  proceeding,  and  which  is  in  the  posses- 
sion of  an  adverse  party,  is  probable,  and  the  property  or  its  rents 
or  profits  are  in  danger  of  being  lost  or  materially  injured  or  im- 
paired; 

"2.  After  judgment,  or  decree,  to  carry  the  same  into  effect; 

"3.  To  dispose  of  the  property  according  to  the  judgment  or  de- 
cree, or  to  preserve  it  during  the  pendency  of  an  appeal,  or  when  an 


S  73  EQUITABLE    REMEDIES.  134 

execution  has  been  returned  unsatisfied,  and  the  debtor  refuses  to 
apply  his  property  in  satisfaction  of  the  judgment  or  decree; 

"4.  In  cases  provided  in  this  code,  or  by  other  statutes,  when  a 
corporation  has  been  dissolved,  or  is  insolvent,  or  in  imminent  dan- 
ger of  insolvency,  or  has  forfeited  its  rights; 

"5.  In  the  cases  provided  in  this  code  when  a  debtor  has  been  de- 
clared insolvent." 

§  1082:  Oath  and  undertaking  of  receiver. 

§  1083:  Claims  for  wages  for  services  performed  within  six  months 
before  receivership  are  preferred  claims.  Employees  of  receiver 
must  be  paid  at  least  once  in  every  thirty  days. 

Rhode  Island. — Gen.  Laws,  1896. 

Pages  536,  537:  Appointment  of  receivers  on  dissolution  of  corpor- 
ations. 

Page  937:  May  be  appointed  to  receive  rents  and  profits  of  estates 
owned  by  joint  tenants  and  tenants  in  common,  upon  application  ol 
any  party  interested. 

South  Carolina. — Code  of  Laws,  1902. 

Code  Civ.  Proc,  §  265:  Appointment. — Similar  to  Oregon.  Not  ap- 
pointed without  notice.  Bond  required  when  application  made  be- 
fore judgment. 

§  318:  Appointment  in  supplementary  proceedings. 

Civil  Code,  §  1869:  Appointment  on  dissolution  of  corporation. 

South  Dakota. — Revised  Codes,  1903. 

Code  Civ.  Proc,  §   227:    Appointment. — Same  as  California. 

§  228:  Receivers  on  dissolution  of  corporations. 

§  229:  No  party  or  person  interested  can  be  appointed,  without 
written  consent.  Applicant  for  ex  parte  receiver  must  give  an  un- 
dertaking. 

S  230:  Oath  and  bond  of  receiver. 

§  231:  Powers. — Same  as  Cal.  Code  Civ.  Proc,  §  568. 

§  232:  Investments. — Same  as  Cal.  Code  Civ.  Proc,  §  569. 

{  404:   Appointment  in  supplementary  proceedings. 

Tennessee. — Code,  1896. 

{  5182:  Appointment  of  receiver  on  dissolution  of  corporation. 

Texas. — Sayles'  Stats. 

Art.  1469:  Appointment. — Same  as  California,  but  omitting  the 
third  and  fourth  subdivisions  of  the  California  provision. 

Art.  1469:  Oath  and  bond  of  receiver. 

Art.  1470:  Powers. — Same  as  Cal.  Code  Civ.  Proc,  §  568. 

Art.  1471:  Investments.— Same  as  Cal.  Code  Civ.  Proc,  §  569. 
Claims  are  entitled  to  priority  as  follows:  (1)  Court  costs;  (2)  Wages 
of  employees  of  receiver;  (3)  Debts  for  materials  and  supplies  fur- 
nished during  receivership;    (4)   Debts  for  betterments  and  Improve- 


135  EECEIVERS;  ABSTRACT  OF  STATUTES.  S  73 

mentg  made  during  receivership;  (5)  Personal  injury  and  damage 
claims  accruing  during  the  receivership;  (6)  Judgments  recovered 
before  receivership. 

Art.  1477:  "The  discharge  of  a  receiver  does  not  work  an  abate- 
ment of  the  suit  against  a  receiver,  nor  shall  it  in  any  way  affect 
the  right  of  the  party  to  sue  the  receiver  if  he  sees  proper." 

Art.  1483:  Receiver  may  sue  and  be  sued  without  leave. 

Art.  1490:  "All  judgments,  claims,  or  causes  of  action  when  deter- 
mined, existing  against  any  corporation  at  the  time  of  the  appoint- 
ment of  a  receiver,  shall  be  paid  out  of  the  net  earnings  of  such 
corporation  while  in  the  hands  of  the  receiver,  to  the  exclusion  of 
mortgage  action;  and  the  same  shall  be  a  lien  on  such  earnings." 

Art.   1491:   Receivership   of  corporations  is  limited  to  three  years. 

Art.  2595:  May  be  appointed  for  estate  of  minor,  person  of  un- 
sound mind,  or  habitual  drunkard,  when  there  is  no  guardian. 

Utali. — Rev.  Stats.  1898. 

§  3114:  Appointment. — Same  as  California. 

§  3115:   Appointment   on  dissolution  of  corporation, 

§  3116:  Party  in  interest  appointed  only  on  consent.  Undertaking 
on  ex  parte  application. 

§  3117:   Oath  and  undertaking  of  receiver. 

§  3118:  Powers.— Same  as  Cal.  Code  Civ,  Proc,  §  563. 

§  3119:  Investments. — Same  as  Cal.  Code  Civ.  Proc,  §  569. 

§  424:   Certain  corporations  may  act  as  receivers. 

§  1344:  Wages  of  employees  for  labor  performed  within  one  year 
before  receivership  are  entitled  to  preference. 

Vermont. — Stats.   1894. 

§§  3700-3703:  Appointment  of  receivers  on  dissolution  of  corpora- 
tions, 

§§  4057-4059:   Receivers  for  insolvent  banks. 

Virginia. — Pollard's  Ann.  Code,  1904, 

§  1105e:  Receivers  on  dissolution  of  corporations. 

§   1169:   Bank  receivers, 

§  2291:  Appointment  for  estate  of  married  woman  who  is  a  minor. 

§  3415a:  Suits  against  corporation  receivers  in  respect  of  acts  done 
by  them  in  carrying  on  business  may  be  maintained  without  leave 
of  court.  No  execution  shall  issue,  but  the  court  in  which  the  re- 
ceivers were  appointed  shall  order  the  payment  of  judgments. 

Washington, — Pierce's  Code, 

§  574:  "A  receiver  is  a  person  appointed  by  a  court  or  judicial 
officer  to  take  charge  of  property  during  the  pending  of  a  civil  ac- 
tion or  proceeding,  or  upon  a  judgment,  decree  or  order  therein,  and 
to  manage,  and  dispose  of  it  as  the  court  or  officer  may  direct," 

8  575:  "A  receiver  may  be  appointed  by  the  court  in  the  following 
cases: 


§  73  EQUITABLE    REMEDIES.  136 

"1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent  purchase  of 
property,  or  by  a  creditor  to  subject  any  property  or  fund  to  his 
claim; 

"2.  In  an  action  between  partners,  or  other  persons  jointly  inter- 
ested  in  any  property  or  fund; 

"3.  In  all  actions  where  it  is  shown  that  the  property,  fund  or 
rents  and  profits  in  controversy  are  in  danger  of  being  lost,  re- 
moved or  materially  injured; 

"i.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  a  mort- 
gage and  the  sale  of  the  mortgaged  property,  when  it  appears  that 
such  property  is  in  danger  of  being  lost,  removed,  or  materially  in- 
jured; or  when  such  property  is  insufficient  to  discharge  the  debt, 
to  secure  the  application  of  the  rents  and  profits  accruing,  before  a 
sale  can  be  had; 

"5.  When  a  corporation  has  been  dissolved,  or  is  insolvent,  or  is 
in  imminent  danger  of  insolvency,  or  has  forfeited  its  corporate 
rights; 

"6.  And  in  such  other  cases  as  may  be  provided  for  by  law,  or 
when,  in  the  discretion  of  the  court  it  may  be  necessary  to  secure 
ample  justice  to  the  parties,  provided  that  no  party  or  attorney  or 
other  person  interested  in  an  action  shall  be  appointed  receiver 
therein." 

§  576:  Oath  and  bond  of  receiver. 

§  580:  "The  receiver  shall  have  power,  under  control  of  the  court, 
to  bring  and  defend  actions,  to  take  and  keep  possession  of  the  prop- 
erty, to  receive  rents,  collect  debts  and  generally  to  do  such  acts  re- 
specting the  property  as  the  court  may  authorize." 

§  524:  Receiver  may  be  appointed  for  property  under  attachment. 

§§  904  ff:  Receivers  in  proceedings  supplementary  to   execution. 

§  925:  Notice  of  application  in  supplementary  proceedings  must 
be  given  to  other  creditors. 

§§  927-930:  Powers  and  duties  of  receivers  appointed  in  supple- 
mentary proceedings. 

§  6137:  "Whenever  a  receiver  or  assignee  is  appointed  for  any 
person,  company  or  corporation,  the  court  shall  require  such  receiver 
or  assignee  to  pay  all  claims  for  which  a  lien  could  be  filed  under 
this  act  [laborers'  claims],  before  the  payment  of  any  other  debts 
or  claims,  other  than  operating  expenses." 

West  Virginia.— Code,  1899,  c.  cxxxiii. 

Pages  892  ff:  A  general  receiver  may  be  appointed  by  the  court, 
to  receive,  take  charge  of  and  invest  moneys  paid  into  court. 

Page  893:  Bond  of  receiver. 

Page  893:  "lie  shall  receive  as  compensation  for  his  services  such 
per  centum  of  the  amount  received  and  invested  or  paid  out  by  him 
in  each  cnse  as  the  court  may  direct,  for  receiving,  investing  or  pay- 
ing out  the  same." 


137  RECEIVERS;  ABSTRACT  OF  STATUTES.  §  73 

Page  895:  "A  court  of  equity  may  in  any  proper  case  pending 
therein,  in  which  the  property  of  a  corporation,  firm  or  person  ia 
involved,  and  there  is  danger  of  the  loss  or  misappropriation  of  the 
same  or  a  material  part  thereof,  appoint  a  special  receiver  of  such 
property  or  the  rents,  issues  and   profits  thereof,  or  both,  who  shall 

^ive   bond But   no    such   receiver   shall   be   appointed   of   any 

real  estate,  or  of  the  rents,  issues  or  profits  thereof  until  reasonable 
notice  of  the  application  therefor  has  been  given  to  the  owner  or 
tenant  thereof." 

Page  808:  Appointment  of  receivers  upon  dissolution  of  corpora- 
tion. 

Wisconsin- — Stats.  1898. 

§  2787:  "A  receiver  may  be  appointed: 

"1.  Before  judgment,  on  the  application  of  either  party,  when  he 
establishes  an  apparent  right  to  or  interest  in  property  which  is  the 
subject  of  the  action  and  which  is  in  the  possession  of  an  adverse 
party,  and  the  property  or  its  rents  and  profits  are  in  danger  of 
being  lost  or  materially  impaired; 

"2.  By  the  judgment,  or  after  judgment,  to  carry  the  judgment 
into  effect  or  to  dispose  of  the  property  according  to  the  judgment; 

"3.  After  judgment,  to  preserve  the  property  during  the  pen- 
•dency  of  an  appeal;  or  when  an  execution  has  been  returned  un- 
satisfied and  the  judgment  debtor  refuses  to  apply  his  property  in 
satisfaction  of  the  judgment,  or  in  an  action  by  a  creditor  under 
«ection  3029; 

•'4.  In  cases  provided  by  any  statute  when  a  corporation  has  been 
dissolved  or  is  insolvent  or  in  imminent  danger  of  insolvency,  or 
has  forfeited  its  corporate  rights; 

"5.  In  such  cases  as  are  now  provided  by  law  or  may  be  in  ac- 
cordance with  the  existing  practice  except  as  otherwise  provided  in 
this  chapter." 

§  2787a:  Wages  of  employees  accruing  within  three  months  of  re- 
ceivership are  preferred  claims. 

§  1769:  Wages  of  railroad  employees  accruing  within  six  months 
before  receivership  are  preferred  claims. 

§  3036:  Notice  of  application  must  be  given  to  plaintiff  in  sup- 
plementary   proceedings. 

§§  3216  ff:  Receivers  for  insolvent  corporations. 

§  1791g:  Trust  company  may  act  as  receiver. 

Wyoming.— Rev.  Stats.  1899. 

§  4054:  Appointment  of  receivers. — Practically  the  same  as  Cal. 
Code  Civ.  Proc,  §  564, 

§  4055:  "No  party,  attorney,  or  person  interested  in  an  action  shall 
be  appointed  receiver  therein  except  by  consent  of  the  parties." 

§  4056:  Oath  and  undertaking  of  receiver. 


§   74  EQUITABLE   REMEDIES.  138 

§  74.  Class  I:  (1)  Infants'  Estates. — "The  cases  in  which 
a  receiver  may  be  appointed,  subject  to  the  general 
rules  regulating  the  exercise  of  the  judicial  discretion, 
may  be  reduced  to  four  general  classes.  The  first  class 
contains  those  cases  where  there  is  no  person  entitled 
to  the  property  who  is  at  the  same  time  competent  to 
hold  and  manage  it  during  the  judicial  proceeding.  In 
instances  of  this  class  a  receiver  is  appointed  more 
readily  and  without  proof  of  imminent  danger,  perhaps, 
than  in  any  other.  "^* 

"A  court  of  equity  exercises  control  over  the  prop- 
erty of  its  infant  ward,  where  there  is  no  trustee,  by 
means  of  a  receiver,  even  though  there  is  a  guardian. 
The  main  reason  for  appointing  a  receiver,  in  the  ab- 
sence of  a  trustee,  was  that  the  guardian  at  common 
law  had  not  full  power  of  control  and  management. 
The  necessity  of  a  receiver  in  such  cases  may  have  been 
obviated  in  many  states  by  statutes  enlarging  the 
powers  of  guardians.  "^^ 

§  4057:  Powers  of  receiver.— Practically  the  same  as  Cal.  Code 
Civ.  Proc,  §  568. 

§  4058:  Investment  of  funds. — Same  as  Cal.  Code  Civ.  Proc,  §  569. 
§  3952:   Appointment  in  aid  of  execution, 
§§  4006  ff:  Receivers  for  attached  property. 

39  4  Pom.  Eq.  Jur.,  §  1332. 

40  Pom.  Eq.  Jur.,  §  1332,  and  note,  citing  Gardner  v.  Blane,  1 
Hare,  381;  Butler  v.  Freeman,  Amb.  301,  303;  Duke  of  Beaufort  v. 
Berty,  1  P.  Wms.  703.  See,  also.  Ex  parte  Whitfield,  2  Atk.  315,  per 
Lord  Hardwicke.  A  statute  in  North  Carolina  provides  for  a  re- 
ceiver in  case  of  the  removal  of  a  guardian  for  certain  specified 
causes.     See  Temple  v.  W^illiams,  91  N.  C.  82. 

The  recent  case  of  Keister  v.  Cubine,  101  Va.  768,  45  S.  E.  285,  is 
of  considerable  interest.  A  mother,  M.  C,  deeded  a  house  to  her 
daughter,  R.  C,  in  consideration  of  a  "proper  and  comfortable 
home"  for  life.  On  the  death  of  the  daughter  the  property  de- 
scended to  her  infant  children.  M.  C.  was  compelled  by  the  widower 
of  R.  C.  to  abandon  the  home.  Rescission  of  the  deed  as  against 
the  infant  owners  was  refused,  since  they  were  not  at  fault;  but  a 
receiver    was    appointed    to    administer   and,    if    necessary,    sell,    the 


139  EECEIVEES;  LUNATICS'  ESTATES.  §§  75  76 

§  75.  (2)  Lunatics'  Estates. — "The  control  of  the  court 
over  the  property  of  a  lunatic  is  ordinarily  exercised 
by  means  of  a  committee;  but  instead  of  a  committee, 
and  especially  where  no  person  will  act  as  a  committee, 
the  court  may  appoint  a  receiver."^^  "Where  a  suit 
was  brought  by  the  committee  of  a  lunatic  to  set  aside 
a  conveyance  of  land  alleged  to  have  been  obtained  by 
defendant  from  the  lunatic  by  fraud  and  undue  in- 
fluence, and  defendant  was  in  possession  receiving  the 
rents   and  profits,  and  was  alleged  to  be  insolvent,  the 

appointment  of  a  receiver  during  the  litigation  was  held 
proper.  "^2 

§  76.  (3)  Estates  of  Decedents. — "During  the  litigation 
concerning  the  admission  of  a  will  to  probate,  and  dur- 
ing the  interval  before  an  executor  or  administrator  is 
appointed,  a  court  of  equity  has  power  to  appoint  a  re- 
ceiver of  the  personal  property  and  of  the  rents  and 
profits  of  the  real  estate,  while  there  is  any  danger  of 
their  loss,  misuse,  or  misapplication.*^     The  necessity 

property,  primarily  for  the  support  of  the  grantor,  M.  C,  and  after 
that  to  hold  the  property  or  its  proceeds  for  the  infant  owners. 

41  Pom.  Eq.  Jur.,  §  1332.  The  appointment  of  a  receiver  pending 
an  inquisition  of  lunacy,  or  a  statutory  inquiry  into  insanity,  to  pre- 
vent mismanagement  or  waste,  rests  in  the  sound  discretion  of  the 
court:  In  re  Misselwitz,  177  Pa.  St.  359,  35  Atl.  722;  In  re  Fountain, 
L.  E.  37  Ch.  D.  609.  See,  also,  Beall  v.  Stokes,  95  Ga.  357,  22  S.  E. 
637  (lunatic  committed  to  asylum  in  another  state,  but  having  an 
estate  in  Georgia,  receiver  appointed  at  suit  of  wife) ;  In  re  Hybart, 
119  N.  C.  359,  25  S.  E.  963  (practice  in  appointing  receiver  of  luna- 
tic's  estate,   under   statutes   of   North   Carolina). 

42  Pom.  Eq.  Jur.,  §  1332,  note;  Mitchell  v.  Barnes,  22  Hun,  194. 
For  the  appointment  of  a  receiver  in  a  suit  under  the  inherent  juris- 
diction of  equity  to  protect  the  property  of  a  person  of  weak  or 
unsound  mind,  who  cannot  be  adjudged  to  be  non  compos  mentis 
(Pom.  Eq.  Jur.,  §  1314),  see  Edwards  v.  Edwards,  14  Tex.  Civ.  App. 
87,  36  S.  W.  lOSO. 

43  Pom.  Eq.  Jur.,  §  1332.  See  Whitworth  v.  Whyddon,  2  Macn. 
&  G.  52,  55;  King  v.  King,  6  Ves.  172;  Atkinson  v.  Henshaw,  2  Ves. 


§   7(3  EQUITABLE    KEMEDIES.  140 

of  such  a  receiver  lias  been  greatly  lessened  by  modern 
statutes  authorizing  the  probate  court  to  appoint  an 
administrator  ad  litems  and  enlarging  his  powers."^* 
"The  recent  English  decisions  hold  that  the  jurisdiction 
will  not  be  exercised  if  the  probate  court  has  already 
appointed  an  administrator  ad  litem;"^^  but  if  no  such 
temporary  administrator  has  been  appointed,  the  court 
of  equity  will  still  appoint  a  receiver"  in  a  proper  case.^® 
The  death  of  one  of  two  executors  and  the  refusal  of  the 
other  to  act  has  also  been  considered  a  good  reason  for 
the  appointment  of  a  receiver  of  the  estate  ;^'^  and  the 
appointment  might  be  made,  on  a  case  of  strong  pre- 
sumption, pending  a  suit  in  the  ecclesiastical  court  to 
recall  probate.^^ 

&  B.  85;  Ball  v.  Oliver,  2  Vea.  &  B.  96;  Watkins  v.  Brent,  1  Mylne 
&  C.  97,  102;  Anderson  v.  Guichard,  9  Hare,  245;  Kendall  v.  Eendall, 
1  Hare,  152;  Wood  v.  Hitchings,  2  Beav.  289;  Eeed  v,  Harris,  7 
Sim.  639;  Eobinson  v.  Taylor,  42  Fed.  803;  Flagler  v.  Blunt,  32  N.  J. 
Eq.  518,  523  (property  liable  to  be  removed  from  the  state);  Long 
V,  Eichardson,  26  Tex.  Civ.  App.  197,  62  S.  W.  964.  For  cases 
where  the  court  refused  to  exercise  the  power,  see  Whitworth  v. 
Whyddon,  2  Macn.  &  G.  52  (property  of  small  value);  Eichards  v, 
Chave,  12  Ves.  462  (no  danger  shown);  Jones  v.  Goodrich,  10  Sim. 
327.  A  receiver  may  be  appointed  of  the  estate  of  a  lunatic  after 
his  death,  since  the  functions  of  the  lunatic's  committee  cease  with 
the  death  of  the  lunatic;  but  such  receivership  should  be  discontin- 
ued on  the  appointment  of  an  administrator  in  litem:  In  re  Colvin '•9 
Estate,  3  Md.   Ch.   278. 

44  4  Pom.  Eq.  Jur.,  §  1332.  See  Goodman  v.  Kopperl,  169  111.  136, 
48  N.  E.  172  (receiver  not  appointed  on  application  of  a  creditoi 
of  decedent,  as  he  has  a  right  to  take  out  administration  of  the  es 
tate);  Colvin 's  Case,  3  Md.  Ch,  278  (receiver  must  surrender  the 
property  when  an  administrator  pendente  lite  is  appointed). 

4  5  Veret  v,  Duprez,  L.  E.  6  Eq.  329;  Hitchen  v.  Birks,  L.  E.  10 
Eq.  471. 

46  4  Pom.  Eq.  Jur.,  §  1332,  note;  Parkin  v.  Siddons,  L.  E.  16 
Eq.  34. 

47  Palmer  v.  Wright,  10  Beav.  234. 

48  Rutherford  v.  Douglas,  1  Sim.  &  St.  Ill,  note. 


141     APPOINTMENT  OF  KECEIVERS;  PARTNERSHIPS.  §§  77,  7S 

§  77.  Class  II:  In  General — "The  second  class  of  cases 
is  based  upon  the  fact  that  all  of  the  parties  are  equally 
entitled  to  the  possession  of  the  property  which  is  the 
subject-matter  of  the  controversy,  but  it  is  not  just  and 
proper,  from  the  nature  of  the  dispute  and  of  their  re- 
lations with  each  other,  that  either  one  of  them  shojild 
be  allowed  to  retain  possession  and  control  during  the 
litigation.  While  the  foundation  of  the  remedy  is,  of 
course,  the  danger,  yet  it  is  not  always  essential  that 
there  should  be  any  element  of  actual  fraud  or  breach 
of  trust."^^  The  most  important  instances  which  do 
or  may  belong  to  this  class  are:  1.  Suits  between  part- 
ners ;  2.  Suits  for  partition  between  co-owners.  3.  Suits 
between  conflicting  claimants  of  land,  so  far  as  they 
afford  occasion  for  the  appointment  of  a  receiver,  may 
conveniently  be  discussed  in  connection  with  this  class, 
though  not  strictly  falling  within  its  definition. 

§  78.  (1)  Receivers  in  Settlement  of  Partnership  Affairs: 
In  General — The  power  of  a  court  of  equity  to  appoint 
receivers  in  the  settlement  of  partnership  affairs,  where 
a  dissolution  is  sought  or  has  occurred,  is  well  estab- 
lished.^^ The  power  is,  however,  always  exercised  with 
great  carefulness  and  caution.^^     The  appointment  is 

49  4  Pom.  Eq,  Jur.,  §  1333. 

60  Pom.  Eq.  Jur.,  §  1333.  See  notes,  Slemmer's  Appeal,  98  Am. 
Dec.  269-271;  Cameron  v.  Groveland  Imp.  Co.,  72  Am.  St.  Eep.  BO- 
SS. Tlie  power  is  inherent  in  the  court,  and  is  not  dependent  upon 
any  statute:  Cox  v.  Volkert,  86  Mo.  505,  511. 

51  Pom.  Eq.  Jur.,  §  1333.  "It  is  a  high  power,  never  exercised 
where  it  is  likely  to  produce  irreparable  injustice  or  injury  to 
private  rights,  or  where  there  exists  any  other  safe  or  expedient 
remedy":  Speights  v.  Peters,  9  Gill  (Md.),  475.  Where  the  time 
limited  for  the  partnership  has  not  expired,  it  is  a  familiar  rule  that 
the  court  will  not  interfere  by  the  extreme  measure  of  a  receiver, 
except  for  the  purpose  of  preservation  of  the  assets  in  the  face  of  a 
real  danger  of  loss:  Warwick  v.  Stockton,  55  N.  J.  Eq.  61,  36  Atl. 
488.  See,  also,  Heflebower  v.  Buck,  64  Md.  15,  20  Atl.  991;  Bard 
V.  Bingham,  54  Ala.  463. 


§  78  EQUITABLE    REMEDIES.  142 

only  made  in  connection  with  a  pending  suit.^^  Upon 
a  preliminary  application  for  a  receiver,  the  court  does 
not  determine  the  questions  arising  between  the  part- 
ners, the  only  question  for  consideration  being  whether, 
upon  the  facts  disclosed,  there  is  an  apparent  neces- 
sity for  a  receiver  to  protect  the  assets  of  the  partner- 
ship until  the  rights  of  the  partners  can  be  definitely 
determined  upon  full  hearing  of  the  case.^*  As  a  gen- 
eral rule,  the  court  will  not  order  the  business  to  be  con- 
tinued by  the  receiver;  the  object  of  the  court  in  ap- 
pointing a  receiver  is  the  care  of  the  partnership  prop- 
erty until  the  cause  shall  be  decided,  not  the  conducting 
of  the  business  of  the  partnership.^*  In  some  excep- 
tional cases,  however,  the  management  of  the  business 
may  be  continued  by  the  receiver,  during  the  pendency 
of  the  action  for  dissolution,  for  the  purpose  of  preserv- 
ing the  good-will  of  the  business,  or  when  the  property 
is  liable  to  injury  from  remaining  idle.^* 

52  Jones  V.  Schall,  45  Mich.  379,  8  N.  W.  68;  Webb  v.  Allen,  15 
Tex.  Civ.  App.  605,  40  S.  W.  342. 

53  Blakeney  v.  Dufour,  15  Beav.  40;  Heflebower  v.  Buck,  64  Md. 
15,  20  Atl.  991.  But  where  the  case  is  ready  for  final  hearing  upon 
the  proofs,  it  is  error  to  appoint  a  receiver  without  adjudging  the 
merits  upon  which  the  right  or  the  propriety  of  the  appointment 
necessarily  depends;  Morey  v.  Grant,  48  Mich.  326,  12  N.  W.  202, 
per  Cooley,  J. 

54  Wolbert  v.  Harris,  7  N,  J.  Eq.  621;  Martin  v.  Van  Schaick,  4 
Paige  (N.  Y.),  479;  Allen  v,  Hawley,  6  Fla.  142,  63  Am.  Dec.  198; 
and  see  Waters  v.  Taylor,  15  Ves.  10;  Taylor  v.  Neate,  39  Ch.  D. 
538. 

55  Marten  v.  Van  Schaick,  4  Paige  (N.  Y.),  479  (a  newspaper); 
Allen  V.  Hawley,  6  Fla.  164,  63  Am.  Dec,  198  (a  steamboat);  Jack- 
son V.  De  Forest,  14  How.  Pr.  81  (a  Uvery-stable).  Under  the  pres- 
ent English  practice,  on  a  dissolution  by  notice  pursuant  to  the  arti- 
cles of  partnership,  where  a  sale  of  the  business  as  a  "going  con- 
cern" is  directed  as  being  the  most  beneficial  mode  of  realization, 
the  court  will  appoint  a  receiver  and  manager  for  the  purpose,  in 
the  meantime,  of  preserving  the  assets  by  carrying  into  effect  exist- 
ing contracts,  and  entering  into  such  new  contracts  as  are  necessary 


143      APPOINTMENT  OF  EECEIVEES;  PAETNEESHIPS.     §§•  79,  80 

§  79.  Existence  of  Partnership  Must  be  Proved;  and  Neces- 
sity for  Dissolution  Must  be  Shown. — In  a  suit  for  dissolu- 
tion and  appointment  of  a  receiver,  the  court  should  not 
intervene  if  the  existence  of  the  partnership  is  denied 
by  the  defendant,  and  there  is  a  substantial  doubt  in- 
volving that  issue  ;^^  especially  where  the  party  in  pos- 
session of  the  property  is  solvent,  and  able  to  respond 
fully  to  any  measure  of  relief  that  can  be  decreed  to  the 
complainant.^^  If  the  partnership  is  still  in  existence, 
the  showing  made  on  application  for  a  receiver  must 
be  such  as  to  leave  no  doubt  that  the  complainant  will 
be  entitled  to  a  dissolution,  if  the  facts  shown  are 
proved  at  the  hearing.^^ 

§  80.  Mere  Right  to  Dissolution  not  SuflScient. — But  the 
mere  right  to  a  dissolution  of  the  partnership  is  not 

for  the  purpose  of  carrying  on  the  business  in  the  ordinary  way, 
but  so  as  not  to  impose,  by  speculative  dealing  or  otherwise,  onerous 
liabilHies  on  the  partners:  Taylor  v,  Neate,  39  Ch.  D.  538. 

56  Irwin  V,  Everson,  95  Ala.  64,  10  South.  320;  Goulding  v.  Bain, 
4  Sandf.  716;  Popper  v.  Scheider,  7  Abb.  Pr.,  N.  S.,  56;  McCarty  v. 
Stanwix,  16  Misc.  Eep.  132,  38  N.  Y.  Supp.  820;  Guild  v.  Meyer, 
56  N.  J.  Eq.  183,  38  Atl.  959;  Hobart  v.  Ballard,  31  Iowa,  521  (right 
to  participate  in  profits  the  test  of  existence  of  a  partnership).  See, 
also,  Taylor  v.  Bliley,  86  Ga.  154,  12  S.  E,  210;  Leeds  v.  Townsend, 
74  111.  App.  444;  Davis  v.  Niswonger,  145  Ind.  426,  44  N.  E.  542. 
The  burden  of  proof  rests  on  the  plaintiff:  Hobart  v.  Ballard,  31 
Iowa,  521.  That  an  issue  may  be  directed  to  a  jury  to  determine 
whether  a  partnership  exists,  or  whether  the  plaintiff  has  an  inter- 
est in  the  profits,  see  Peacock  v.  Peacock,  16  Ves.  49;  Fairburn  v. 
Pearson,  2  Macn.  &  G.  144.  That  the  same  equitable  principles  ap- 
ply, whether  the  relation  between  the  parties  is  that  of  joint  adven- 
turers, or  of  partners,  see  Wilcox  v.  Pratt,  125  N.  Y.  688,  25  N. 
E.  1091;  Warwick  v.  Stockton,  55  N.  J.  Eq.  61,  36  Atl.  488. 

57  Irwin  V.  Everson,  95  Ala.  64,  10  South.  320;  Goulding  v.  Bain, 
4    Sandf.    716. 

58  Goodman  v.  Whitcomb,  1  Jacob  &  W.  589;  Smith  v.  Jeyes,  4 
Beav.  503;  Eoberts  v.  Eberhardt,  Kay,  148;  Hall  v.  Hall,  3  Macn.  & 
G.  79;  Const  v.  Harris,  Turn.  &  E.  517;  Garretson  v.  Weaver,  3  Edw. 
Ch.  (N.  Y.)  385.  A  receiver  cannot  be  appointed  where  the  bill 
contains  no  prayer  for  a  dissolution;  Pirtle  v.  Fenn,  3  Dana  (Ky.), 
247,  28  Am.  Dec.  70. 


§  80  EQUITABLE   EEMEDIES.  144 

sufficient  to  warrant  the  appointment  of  a  receiver; 
there  must  be  some  breach  of  the  duty  of  a  partner,  or 
of  the  contract  of  partnership,  and  a  necessity  of  pres- 
ervation of  the  assets  in  the  face  of  a  real  danger  of 
loss.^^  Such  facts  as  the  unprofitable  nature  of  the 
business,^*^  or  the  refusal  of  the  defendant  partner  to 
co-operate  in  its  management,^^  furnish  no  grounds  for 
a  receiver.  But  if  the  conduct  of  the  defendant  part- 
ner has  been  such  as  justly  to  destroy  all  confidence  in 
him,  this  is  an  important  fact  to  be  considered  by  the 
court  ;*^-  and  where  the  firm  is  admitted  to  be  insolvent, 

59  Harding  v.  Glover,  18  Ves.  281,  per  Lord  Eldon;  "Warwick  v. 
Stockton,  55  N.  J,  Eq.  61,  36  Atl.  4S8;  Weissenborn  v.  Sieghortner, 
21  N.  J.  Eq.  483,  reversing  20  N.  J,  Eq.  172;  Eandall  v.  Morrell,  17 
N.  J.  Eq.  343;  Cox  v.  Peters,  13  N.  J.  Eq.  39;  Wilson  v.  Fitehter,  11 
N.  J.  Eq.  71;  Birdsall  v.  Colie,  10  N.  J.  Eq.  63;  Eenton  v.  Chaplain, 
9  N.  J.  Eq.  62  (the  ralief  refused  to  a  purchaser  of  one  partner's  in- 
terest at  a  sheriff's  sale).  This  is  true  of  partnerships  determina- 
ble at  the  will  of  one  partner:  Birdsall  v.  Colie,  and  Cox  v.  Peters, 
gupra;  though  Chancellor  Walworth  is  credited  with  the  statement 
that  in  such  cases  a  receiver  is  a  matter  of  course,  if  the  articles  of 
partnership  have  made  no  provision  for  closing  up  the  concern;  see 
Law  V.  Ford,  2  Paige,  310. 

60  Shoemaker  v.  Smith,  74  Ind.  71. 

61  Roberts  v.  Eberhardt,  Kay,  148.  See  the  frequently  quoted  re- 
marks of  Lord  Eldon  on  the  subject  of  disagreement  among  the 
partners  as  a  ground  of  dissolution:  "Where  partners  differ,  as  they 
sometimes  do,  when  they  enter  into  another  kind  of  partnership, 
they  should  recollect  that  they  enter  it  for  better  and  worse,  and 
this  court  has  no  jurisdiction  to  make  a  separation  between  them 
because  one  is  more  sullen  or  less  good-tempered  than  the  other. 
Another  court,  in  the  partnership  to  which  I  have  alluded,  cannot, 
nor  can  this  court  in  this  kind  of  partnership,  interfere,  unless  there 
is  a  cause  of  separation  which,  in  the  one  case,  must  amount  to 
downright  cruelty,  and  in  the  other  must  be  conduct  amounting  to 
an  entire  exclusion  of  the  partner  from  his  interest  in  the  partner- 
ship. Whether  a  dissolution  may  ultimately  be  decreed  I  will  not 
say,  but  trifling  circumstances  of  conduct  are  not  sufficient  to  au- 
thorize the  court  to  award  a  dissolution":  Goodman  v.  Whitcomb, 
1  Jacob   &  W.  589. 

62  Smith  V.  .Jeyes,  4  Beav.  503;  Todd  v.  Eich,  2  Tenn.  Ch.  107; 
Williamson  v.  Wilson,  1  Bland   (Md.),  418. 


145         APPOINTMENT  OF  RECEIVERS;  PARTNERSHIPS.       $  81 

and  each  partner  charges  the  other  with  threatened 
waste  of  the  partnership  property  and  an  intent  to  give 
an  unlawful  preference  to  certain  creditors  f^  or  where 
willful  acts  of  fraud  by  the  defendants  are  shown,  and 
application  of  the  partnership  funds  to  their  own  use;® ^ 
or  when  the  petition  shows  insolvency,  dissension  be^ 
tween  the  partners,  probability  of  waste,  and  a  neces- 
sity for  an  accounting  and  dissolution — in  such  cases 
sufficient  grounds  are  presented  for  a  receiver.®^ 

§  81.  Exclusion  from  Management  as  Ground. — The  ex- 
clusion of  one  partner  from  his  full  share  of  participa- 
tion in  the  business  of  the  partnership  is  considered  one 
of  the  strongest  grounds  for  the  appointment  of  a  re- 
ceiver.^®  When  the  application  is  made  on  this  ground, 
it  is  not  always  a  necessary  condition  of  the  action  of 

63  Williamson  v.  Wilson,  supra. 

64  Barns  v,  Jones,  91  Ind,  161;  Shannon  v.  Wright,  60  Md.  520. 

65  Veith  V.  Ress,  60  Neb.  52,  82  N.  W.  116. 

66  Const  V.  Harris,  Turn.  &  R.  517,  24  Rev.  Rep.  108,  per 
Lord  Eldon;  Wilson  v.  Greenwood,  1  Swanst.  471  (exclusion  of 
assignees  of  bankrupt  partner) ;  Butchart  v.  Dresser,  4  De  Gex, 
M.  &  G.  542;  Einstein  v.  Schnebly,  89  Fed.  540,  552;  Katz  v. 
Brewington,  71  Md,  79,  20  Atl.  139  (although  the  plaintiff  may 
have  an  interest  only  in  the  profits,  and  not  in  the  capital);  Speights 
V.  Peters,  9  Gill  (Md.),  475;  Wolbert  v.  Harris,  7  N.  J.  Eq.  621; 
Wilcox  V.  Pratt,  125  N.  Y.  68S,  25  N.  E.  1091,  affirming  52  Hun,  340, 
5  N.  Y.  Supp.  361;  Cole  v.  Price,  22  Wash.  18,  60  Pac.  153;  Redding 
V.  Anderson  (Wash.),  79  Pac.  628.  Otherwise,  if,  by  agreement,  the 
business  was  to  be  conducted  by  the  defendant  alone:  Warwick  v. 
Stockton,  55  N.  J.  Eq.  61,  36  Atl.  488;  and  a  receiver  in  behalf  of  an 
excluded  partner  was  refused,  in  a  case  where  the  partner  in  possession, 
prior  to  the  formation  of  the  partnership,  had  owned  all  the  property 
and  conducted  the  business,  and  the  complainant  purchased  a  half  in- 
terest in  the  property  and  business  on  long  credit,  mortgaging  it  back 
to  secure  the  debt;  the  complainant  did  not  aver  or  show  that  the  part- 
ner in  possession  was  insolvent,  or  that  the  property  was  endangered 
in  his  custody;  nor-,  did  he  aver  or  show  any  willingness  or  ability  to 
make  the  payments  as  they  fell  due,  or  that  his  interest  was  equal 
to  the  amount  due:  Bard  v.  Bingham,  54  Ala.  463. 

Equitable  Remedies,  Vol.  I— 10 


§  82  EQUITABLE    REMEDIES.  146 

the  court  that  the  property  should  be  in  imminent 
peril  ;*'^  but  if  there  is  in  addition  to  the  exclusion,  a 
showing  of  fraudulent  conduct  on  the  defendant's  part, 
and  a  dissolution  is  inevitable,  the  court  will  unhesita- 
tingly appoint  a  receiver.^* 

§  82.  After  Dissolution;  Partner  Liquidating  Under  Agree- 
ment— Where  dissolution  of  the  partnership  has  already 
occurred,  and  an  agreement  has  been  made  that  one  or 
more  of  the  partners  shall  have  charge  of  its  properties 
and  wind  up  the  concern,  "their  possession  is  not  to  be 
interfered  with  on  slight  grounds.  There  must  be  some 
palpable  breach  of  conduct  or  of  duty,  or  some  miscon- 
duct amounting  to  fraud,  or  such  as  will  endanger  the 
property  and  the  rights  of  the  partner  who  has  with- 
drawn, in  order  to  justify  the  court's  interference.  It 
does  not  follow^  that  the  complainant  has  a  right  to  in- 
tercept their  proceeding,  under  a  mere  apprehension  of 
such  loss,  or  because  he  may  think  the  defendants  have 
not  acted  discreetly  or  judiciously  in  some  particu- 
lars."^*    But  where  such  an  agreement  gives  the  con- 

6T  Speights  V.  Peters,  supra. 

68  See  Cole  v.  Price,  22  Wash.  18,  60  Pae.  153;  Haight  v.  Burr, 
19  Md.  130;  Shannon  v.  Wright,  60  Md.  520;  Barnes  v.  Jones,  91 
Ind.  161.  Thus,  in  the  last  case,  the  complaint  showed  willful  acta 
of  fraud  by  the  defendants,  the  application  by  them  of  the  partnership 
funds  to  their  own  use,  the  making  by  them  of  false  entries  upon  the 
looks,  the  preventing  of  the  plaintiff  from  having  access  to  such 
books,  and  the  willful  concealment  from  him  of  the  condition  of  the 
partnership  business. 

69  Walker  v.  Trott,  4  Edw.  Ch.  38.  To  the  same  effect,  see  Waters 
V.  Taylor,  15  Ves.  10,  19;  Bufkin  v.  Boyce,  104  Ind.  53,  3  N.  E.  615; 
Heflebower  v.  Buck,  64  Md.  15,  20  Atl.  991;  Simon  v.  Schloss.  48 
Mich.  233,  12  N.  W.  196;  Weston  v.  Watts,  1  N.  Y.  St.  Eep.  763; 
Alcott  V.  Vulter,  33  App.  Div.  245,  53  N.  Y.  Supp.  474;  Meyer  v. 
Reimers,  30  Misc.  Rep.  307,  63  N.  Y.  Supp.  681,  affirmed  49  App. 
Div.  638,  63  N.  Y.  Supp.  1112.  See,  however,  Bennett  v.  Smith,  108 
Ga.  466,  34  S.  E.  156. 


147         APPOINTMENT  OF  KECEIVEES;  PAETNEESHIPS.       §  83 

tinuing  partners  the  exclusive  right  to  the  possession 
of  the  partnership  property,  and.  holds  the  retiring  part- 
ner harmless,  a  receiver  may  be  appointed  for  the  pres- 
ervation of  the  assets,  on  a  showing  that  the  continu- 
ing partners  are  wasting  or  misapplying  them,  or  that 
by  reason  of  their  insolvency  the  retiring  partner  is  in 
danger  of  being  sued  for  the  debts  of  the  firm;'^*^  and  a 
receiver  is  also  warranted  by  the  fact  that  after  dissolu- 
tion the  remaining  partners  continue  to  carry  on  the 
business  on  their  own  account  with  the  partnership 
effects.'^i 

§  83.  After  Dissolution;  No  Agreement  for  Liquidation. — 
In  the  absence  of  any  provision  or  agreement  by  the 
partners  as  to  the  division  of  the  property  or  the  man- 
ner of  closing  its  affairs,  a  receiver  will  readily  be  ap- 
pointed, after  dissolution,  in  case  of  a  disagTeement  be- 
tween the  partners.  This  rule  is  based  on  the  principle 
that  each  partner  has  an  equal  right  to  the  possession 
and  control  of  the  partnership  effects.'^  ^ 

70  Allen  V.  Cooley,  53  S.  C.  414,  31  S.  E.  634;  West  v.  Chasten, 
12  Fla.  315;  Drury  v.  Koberts,  2  Md.  Ch.  157. 

71  Harding  v.  Glover,  18  Ves.  281.  See,  also,  Joselove  v.  Bohrman, 
119  Ga.  204,  45  S.  E.  982  (insolvent  continuing  partner  contracts 
new  liabilities  in  firm  name;  injunction  and  receiver). 

7  2  McElvey  v.  Lewis,  76  N.  Y.  373;  Law  v.  Ford,  2  Paige,  310; 
Marten  v.  Van  Schaick,  4  Paige,  479;  Whitman  v.  Eobinson,  21  Md. 
43;  Sloan  v.  Moore,  37  Pa.  St.  217;  Fleming  v.  Carson,  37  Or.  252, 
62  Pac.  374;  Martin  v.  Hurley,  84  Mo.  App.  670;  Mitchell  v.  Lister, 
21  Ont.  22;  and  see  Mcintosh  v.  Perkins,  13  Mont.  143,  32  Pac.  653. 
Some  of  the  cases  speak  of  the  receivership  being  almost  a  matter 
of  course  under  such  circumstances.  See  the  New  York  cases  above 
cited;  and  Pini  v.  Eoncoroni,  [1S92]  1  Ch.  633;  but  compare  the 
New  Jersey  cases  cited  ante,  in  note  to  §  80.  By  the  rule  in  New 
Jersey,  a  receiver,  after  dissolution,  is  appointed  only  when  nec- 
essary to  protect  the  interests  of  the  parties;  but  the  circumstance 
of  the  insolvency  of  one  of  the  partners,  in  addition  to  the  fact  of 
the  dissolution  of  the  firm,  would,  under  ordinary  circumstances, 
induce  the  court  to  assume  the  administration  of  the  partnership 
affairs:  Eandall  v.  Morrell,  17  N.  J.  Eq.  343,  346. 


i  84  EQUITABLE  EEMEDIES.  148 

§  84.  Receiver  on  Death  of  Partner. — The  surviving 
partner  being  the  one  in  whom  the  deceased  himself 
reposed  confidence,  and  being  in  law  entitled  to  the 
possession  and  control  of  the  firm  assets,  control  should 
not  be  wrested  from  him,  by  the  appointment  of  a  re- 
ceiver, without  a  clear  showing  of  mismanagement  or 
improper  conduct,  and  of  danger  of  ultimate  loss  to  the 
estate  of  the  deceased  partner. '^^  But  where  the  sur- 
viving partner  is  acting  negligently  or  faithlessly — as, 
by  failing  to  take  an  account  of  stock,  and  to  keep  an 
account  of  sales  ;'^^  or  by  refusing  to  close  up  the  firm 

While  in  cases  of  this  character  a  receiver  is  not  a  matter  of  ab- 
solute right,  one  will  be  appointed  where  the  defendant  partner 
"has  withdrawn  from  the  partnership  funds  a  very  large  sum,  and 
has  so  brought  about  its  insolvency.  That  is  a  good  ground  for  say- 
ing that  the  plaintiff  can  no  longer  trust  him":  Pini  v.  Koneoroni, 
[1892]  1  Ch.  633.  In  this  case,  the  jurisdiction  to  appoint  a  receiver 
was  not  ousted  by  a  very  broad  arbitration  clause,  requiring  the  sub- 
mission of  all  differences;  so,  too,  where  the  articles  provide  that 
on  dissolution  the  partners  should  appoint  a  person  to  collect  the  ac- 
counts and  settle  the  partnership  affairs,  on  their  failure  to  agree  on 
any  person  the  court  will  appoint  a  receiver:  Mitchell  v.  Lister,  21 
Ont.  22. 

Dissolution  by  Bankruptcy  of  Partner.— In  England,  "the  usual 
course  where  disputes  as  to  the  management  of  partnership  affairs 
arise  between  the  trustees  of  a  bankrupt  partner  and  the  solvent 
partners,  and  there  is  no  reason  for  distrusting  the  latter,  is  that 
the  court  will  appoint  one  of  them  receiver  of  th©  partnership  prop- 
erty, directing  him  to  give  security,  to  pass  his  accounts,  and  to  fur- 
nish the  trustee  with  proper  accounts,  and  to  allow  him  at  all  rea- 
sonable times  to  inspect  the  partnership  books":  Lindley,  Partn.  (5th 
ed.),  p.  670,  quoted  in  Collins  v.  Barker,  [1893]  1  Ch.  578. 

73  Painter  v.  Painter  (Cal.),  36  Pac.  865,  875;  Huggins  v.  Hug- 
gins,  117  Ga.  151,  43  S.  E,  759  (not  appointed  when  survivor  sol- 
vent, and  no  special  circumstances);  Walker  v.  House,  4  Md.  Ch. 
39,  44;  Comstock  v.  McDonald,  113  Mich,  626,  71  N.  W.  1087;  Mason 
v.  Dawson,  15  Misc.  Rep.  595,  37  N.  Y.  Supp.  90  (survivors  entitled 
fo  wind  up  the  affairs  of  the  partnership  by  virtue  of  an  express 
provision  in  the  articles;  mere  delay,  slightly  in  excess  of  that  per- 
mitted by  the  articles,  not  sufficient  ground  for  receiver). 

74  Word  v.  Word,  90  Ala.  81,  7  South.  412. 


149         APPOINTMENT  OF  KECEIVERS;  PARTNERSHIPS.       §  85 

business  within  a  reasonable  time,  and  by  continuing 
to  manage  it  in  his  own  name  and  for  his  own  benefit  ;'^^ 
or  by  conducting  the  firm  business  for  the  purpose  of 
continuing  and  enlarging  it,  and  not  to  close  if^^ — if 
there  is  danger  that  the  estate  of  the  deceased  co-part- 
ner will  suffer,  a  receiver  may  be  appointed  on  the  ap- 
plication of  the  legal  representatives  of  the  latterJ''^ 
On  the  death  of  both  partners,  it  has  been  held  that  a 
receiver  should  be  appointed  on  the  ground  that  no  re- 
lation of  confidence  exists  between  their  representa- 
tives J* 

§  85.  Miscellaneous.— Where  both  partners  have  as- 
signed their  respective  interests  in  the  firm,  the  juris- 
diction may  be  exercised  between  the  assignees  upon 
the  same  principles  which  govern  the  jurisdiction  as 
between  partners  themselves.'^^  Where  each  partner 
has  attempted  separately  to  make  an  assignment  of  the 
partnership  assets  for  the  benefit  of  creditors,  a  receiver 
is  proper.^** 

There  can  be  no  ground  for  a  receiver  in  behalf  of  a 
partner  who  is  himself  in  possession. ^^ 

The  fact  that  a  motion  for  a  receiver  was  denied  in 
a  former  suit  for  the  settlement  of  the  partnership 
affairs,  which  suit  was  dismissed  without  prejudice, 
constitutes  no  bar  to  the  relief  in  another  action.^^ 

A  receiver  will  generally  be  refused  where  the  equities 
of  the  plaintiff  in  the  bill  are  fully  met  and  denied  by 

75  Holden's  Admrs.  v.  McMakin,  Par.  Eq.  Cas.   (Pa.)    270. 

76  Dawson  v.  Parsons,  66  Hun,  628,  21  N.  Y.  Supp.  212. 

77  Clegg  V.  Fishwick,  1  Macn.  &  G.    294. 

78  In  the  early  case  of  Phillips  v.  Atkinson,  2  Bro.  C.  C.  272;  but 
Bee  Perrin  v.  Lepper,  56  Mich.  351,  23  N.  W.  39. 

79  Maynard  v.  Railey,  2  Nev.  133. 

80  Fox  V.  Curtis,  176  Pa.  St.  52,  34  Atl.  952,  38  Wkly.  Not.  Cas.  321. 

81  Smith  V.  Lowe,  1  Edw.  Ch.  33. 

82  Anderson  v.  Powell,  44  Iowa,  20. 


§  86  EQUITABLE    REMEDIES.  15U 

the  answer  ;^^  and  where  the  appointment  would  de- 
stroy the  value  of  the  business  without  benefit  to  either 
party.^^  In  some  cases,  the  necessity  of  a  receiver  has 
been  obviated  by  a  bond  executed  by  the  defendant  for 
the  satisfaction  .of  any  decree  that  might  be  rendered 
in  favor  of  the  plaintiff.^^ 

It  is  said  that  the  receiver  should  be  directed  to  take 
charge  of  all  the  i^artnership  property,  not  of  a  portion 
merely,  where  the  suit  is  for  a  final  accounting;  and 
where  the  ownership  of  some  of  the  property  is  in  dis- 
pute, that  the  order  should  furnish  the  means  of  distin- 
guishing the  private  property  of  the  defendant  from 
the  partnership  property.^^ 

§  86.  (2)  In  Partition  and  Other  Suits  Between  Co- 
owners — "In  suits  between  co-owners  of  mines  and  col- 
lieries the  English  courts  grant  a  receiver  upon  the 
same  grounds  and  under  the  same  circumstances  as  in 
those  between  partners,"  since  "the  working  of  a  mine 
by  co-owners  is  necessarily  a  business  analogous  to  a 
partnership."^^ 

83  Williamson  v.  Monroe,  3  Cal.  383;  Coddington  v.  Tappan,  26 
N.  J.  Eq.  141. 

84  Slemmer's  Appeal,  58  Pa.  St.  168,  98  Am.  Dec.  255. 

85  See  Popper  v.  Scheider,  7  Abb.  Pr.,  N.  S.,  56;  Saverios  v.  Levy, 
1  N.  Y,  St.  Eep.  758;  Buchanan  v.  Comstock,  57  Barb.  568;  Philipp 
V.  Von  Eaven,  26  Misc.  Eep.  552,  57  N.  Y.  Supp.  701  (under  Code 
Civ.  Proc,  §  1947);  Word  v.  Word,  90  Ala.  81,  7  South.  412;  Devereux 
V.  Fleming,  47  Fed.  177;  Cary  Bros.  v.  Dalhoff  Const.  Co.,  126  Fed. 
584,  and  see  Fleming  v.  Carson,  37  Or.  252,  62  Pac.  374  (bond  refused). 

86  Morey  v.  Grant,  48  Mich.  326,  12  N.  W.  202,  per  Cooley,  J. 

87  4  Pom.  Eq.  Jur.,  §  1333,  and  note  2;  Jefferys  v.  Smith,  1  Jacob 
&  W.  298,  per  Lord  Eldon.  In  this  case  there  was  a  dispute  as  to 
the  management  of  the  property  among  a  large  number  of  owners 
of  a  colliery.  "Here  there  are  twenty  shares;  and  if  each  owner 
may  employ  a  manager  and  a  set  of  workmen,  you  destroy  the  sub- 
ject altogether;  it  renders  it  impossible  to  carry  it  on."  In  Parker 
V.  Parker,  82  N.  C.  165,  where  co-tenants  in  possession  of  a  gold  mine 
were  of  doubtful  responsibility  to  respond  in  damages  for  gold  ap- 


151  APPOINTMENT  OF  KECEIVEES  IN  PAETITION.        S  86 

In  all  ordinary  suits,  including  suits  for  partition, 
between  legal  co-owners  of  land,  a  receiver  is  not  usu- 
ally appointed  unless  some  of  the  parties  are  in  sole 
possession,  to  the  exclusion  of  the  others.^^  Beyond 
this  statement  it  is  difficult  to  formulate  any  rule  that 
will  be  supported  by  authority.^^     In  a  well-considered 

propriated  by  them,  a  receiver  was  held  to  be  proper  pendente  lite, 
instead  of  an  injunction,  as  the  public  had  an  interest  in  the  con- 
tinued working  of  the  mine.  But  mere  colorable  ouster  on  the  part 
of  a  tenant  in  common  who  is  in  possession  of"  a  mining  claim  by 
the  consent  of  a  co-tenant  who  has  brought"  a  suit  for  partition,  and 
the  mere  fact  that  the  care  of  the  property  involves  considerable 
expense,  will  not  authorize  the  appointment  of  a  receiver:  Heinze  v. 
K'einschmidt,  25  Mont.  89,  63  Pac.  927.  In  Heinze  v.  Butte  &  Boston 
Consolidated  Min.  Co.,  61  C.  C.  A.  63,  126  Fed.  1,  7-11,  a  receiver 
was  appointed,  in  a  partition  suit,  to  receive  the  share  of  ore  per- 
taining to  an  interest  the  ownership  of  which  was  in  dispute;  and 
the  subsequent  extension  of  the  receivership  to  the  entire  property, 
under  directions  to  operate  the  mine,  on  a  showing  of  fraud  by  the 
co-tenants  in  possession  in  withholding  such  share  from  the  receiver, 
was  held  not  to  be  an  abuse  of  discretion  on  the  part  of  the  trial 
court.  This  decision  was  based  in  part,  however,  upon  conduct  of 
the  co-tenant  in  possession  showing  acquiescence  in  the  order  ex- 
tending the  receivership;  and  Boss,  Cir.  J.,  dissented  (at  pp.  28,  29) 
both  as  respects  the  appointment  and  the  extension.  In  general,  as 
to  receivers  of  mining  property,  see  next  section. 

88  Pom.  Eq.  Jur.,  §  1333;  Milbank  v.  Eevett,  2  Mer.  405;  Cassetty 
r.  Capps,  3  Tenn.  Ch.  524;  Vaughan  v.  Vincent,  88  N.  C.  116;  Kill  v. 
Murdock,  4  Ohio  N.  P.  244;  Lamaster  v.  Elliott,  53  Neb.  424,  73  N. 
W.  925  (mere  ill-will  and  hostility  between  joint  owners  does  not 
warrant  the  appointment  of  receiver).  The  appointment  will  not 
be  made  solely  because  one  of  the  co-tenants  is  ocejipying  all  of  the 
common  property  without  paying  rent;  he  has  a  right  so  to  occupy 
it,  unless  his  occupation  is  a  virtual  ouster  of  the  complainant:  Var- 
num  V.  Leek,  65  Iowa,  751,  23  N.  W.  151.  That  a  notice  to  under- 
tenants not  to  pay  rent  to  co-tenants  entitled  thereto  by  agreement 
does  not  amount  to  an  exclusion,  see  Tyson  y.  Fairclough,  2  Sim.  & 
St.  142. 

89  Freeman  on  Co-tenancy  and  Partition,  §  327:  "In  most  of  the 
early  cases,  the  circumstances  inducing  the  action  of  the  court  can- 
not be  ascertained  from  the  reports.  No  conclusion  can,  therefore, 
be  drawn  from  these  cases  as  to  the  grounds  which  warrant  the  in- 
terposition of  the   court.     Most   of  the  recent  cases  were  so  curtly 


§  86  EQUITABLE    REMEDIES.  152 

case  in  Georgia  it  was  held  "that  a  court  of  equity  has 
jurisdiction  to  appoint  a  receiver,  at  the  instance  of 
one  tenant  in  common  against  his  co-tenants,  who  are 
in  possession  of  undivided  valuable  property,  receiv- 
ing the  whole  of  the  rents  and  profits  and  excluding 
their  companion  from  the  receipt  of  any  portion  thereof, 

disposed  of  as  to  leave  us  without  any  knowledge  of  the  reasons 
which,  in  their  own  minds,  justified  the  action  of  the  judges.  We 
therefore  find  it  impossible  to  state  with  precision  the  general  prin- 
ciples upon  which  the  action  of  courts  of  equity  have  been  or  will 
be  predicated  in  disposing  of  applications  for  the  appointment  of 
receivers  of  undivided  estates.  It  is  certain,  however,  that  the  ap- 
plication will  be  denied,  except  in  extreme  cases."  In  New  York  it 
has  been  held  that  a  receiver  may  be  appointed  to  preserve  the  prop- 
erty during  the  pendency  of  an  action  for  partition,  where  it  is 
shown  that  a  portion  of  the  property  cannot  be  rented,  and  that  the 
rents  of  the  remaining  portions  cannot  be  collected,  because  of  the 
refusal  of  one  of  the  co-tenants  to  unite  with  the  others:  Pignolet  v. 
Bushe,  28  How.  Pr.  9;  or  where  there  was  a  strong  feeling  of  hos- 
tility between  the  co-tenants,  and  a  probability  of  future  injury  to 
the  interests  of  both  parties:  Goldberg  v.  Richards,  26  N.  Y.  Supp. 
335,  5  Misc.  Rep.  419.  In  Bender  v.  Van  Allen,  28  Misc.  Rep.  304,  59 
N.  T.  Supp.  885,  a  receiver  was  refused  where  one  defendant  in  an 
action  of  partition  claimed  as  tenant  by  the  curtesy,  since  none  of 
the  heirs  were  entitled  to  possession  during  the  life  of  such  tenant, 
if  his  claim  should  be  established;  and  in  Darcin  v.  Wells,  61  How. 
Pr,  259,  and  Bathmann  v.  Bathmann,  79  Hun,  447,  29  N.  Y.  Supp. 
959,  also  actions  of  partition,  no  grounds  existed  for  the  appoint- 
ment. In  Illinois,  it  was  held  that  the  appointment  on  a  bill  for 
partition  by  infants  of  a  receiver  for  a  long  term  of  years,  on  the 
application  of  adult  co-tenants,  without  the  consent  of  the  infants 
or  their  guardians,  was  unauthorized:  Ames  v.  Ames,  148  111.  321, 
340,  36  N.  E.  110.  The  court  has  no  power  to  appoint  a  receiver 
over  other  lands  of  the  co-tenant  not  involved  in  the  suit,  in  order 
to  collect  a  judgment  for  rents:  Branner  v.  Webb,  10  Kan.  App.  217, 
63  Pae.  274. 

Under  the  broad  power  to  appoint  receivers  conferred  by  the  Su- 
preme Court  of  Judicature  (see  ante,  §  72),  the  English  courts 
now  hold  that  a  receiver  may  be  appointed  until  the  hearing  although 
the  co-owner  is  not  in  exclusive  possession:  Porter  v.  Lopes,  L.  R. 
7  Ch.  D.  358,  per  Jessel,  M.  R.  And  in  Indiana,  under  §  1222  of  Re- 
vised Statutes  of  1881,  the  appointment  is  a  matter  solely  within  the 
discretion  of  the  court  or  judge,  and  the  defendant  cannot  defeat  the 


153  EECEIVEES;   CONFLICTING  TITLES  TO  LAND.         §  87 

when  such  tenants  are  insolvent."^*^  Courts  are  averse 
to  appointing  a  receiver  over  personal  property  at  the 
suit  of  one  co-owner  against  the  other;  and  in  a  suit 
for  the  partition  of  such  property  will  refuse  a  receiver 
if  tlie  defendant  in  exclusive  possession  will  give  ade- 
quate security  against  the  deterioration  or  destruction 
of  the  property  and  to  compensate  the  plaintiff  for  its 
use.^^ 

§  87.  (3)  "In  Suits  Between  Conflicting  Claimants  of 
Land,  especially  between  parties  claiming  under  legal 
titles,  a  receiver  will  not  ordinarily  be  appointed.  The 
remedy,  however,  may  be  granted  under  special  circum- 
stances, in  cases  of  gross  fraud  or  great  danger,  or 
where  possession  is  maintained  by  violence,  and  the 
like.  In  such  cases  the  court  acts  with  great  caution, 
only  where  the  plaintiff's  rights  are  reasonably  certain, 
and  the  danger  is  apparent."^^     The  insolvency  of  a 

appointment  by  showing  the  collector  of  the  rents  to  be  amply  re- 
sponsible or  by  offering  to  indemnify  and  secure  the  plaintiff  against 
loss:   Eapp  v,  Keehling,   122  Ind.  255,   23   N.  E.  68. 

90  Williams  v.  Jenkins,  11  Ga.  595,  citing  Street  v.  Anderton,  4 
Bro.  C.  C.  415,  and  Milbank  v.  Kevett,  2  Mer.  405. 

91  Low  V.  Holmes,  17  N.  J.  Eq.  148.  But  in  California  it  was  held 
that  where  a  tenant  in  common  of  a  growing  crop  was  in  sole  pos- 
session thereof,  and  denied  the  right  of  his  co-tenant  to  any  part 
thereof,  and  threatened  to  sell  the  entire  crop  and  appropriate  the 
proceeds  to  his  own  use,  the  co-tenant  might  maintain  an  action  for 
the  partition  of  the  crop,  and  that  in  such  an  action  a  receiver 
pendente  lite  was  authorized  by  Code  of  Civil  Procedure,  §  564: 
Baughman  v.  Eeed,  75  Cal.  319,  7  Am.  St.  Eep.  170,  17  Pac.  222. 
For  a  ease  where  a  receiver  was  appointed  at  the  suit  of  certain 
part  owners  of  a  vessel,  where  the  defendant  part  owners  had  been 
acting  in  fraud  of  the  plaintiff's  rights,  see  Brenan  v.  Preston,  2 
Be  Gex,  M.  &  G.  813. 

92  Pom.  Bq.  Jur.,  §  1333.  See  Owen  v.  Homan,  4  H.  L.  Cas.  997, 
3  Macn.  &  G.  378;  Bainbrigge  v.  Baddeley,  3  Macn.  &  G.  413;  Earl 
Talbot  V.  Hope  Scott,  4  Kay  &  J.  96;  Lloyd  v.  Passingham,  16  Ves. 
€8;  Clark  v.  Dew,  1  Euss.  &  M.  103  (suit  by  devisee  against  heir  at 


§  87  EQUITABLE    KEMEDIES.  154 

defendant  in  possession  does  not  of  itself  warrant  the 
court  in  appointing  a  receiver,  but,  in  addition,  it  must 
appear  that  the  plaintiff  has  a  jjrobable  right  to  recover 

law);  Eyder  v.  Bateman,  93  Fed.  16;  St.  Louis  etc.  R.  R.  Co.  v. 
Dewees,  23  Fed.  519;  Bateman  v.  Superior  Court,  54  Cal.  285;  Scott 
V.  Sierra  Lumber  Co.,  67  Cal.  71,  76,  7  Pac.  131;  San  Jose  Safe  De- 
posit Bank  v.  Bank  of  Madera,  121  Cal.  543,  54  Pac.  85;  Bennallack  v. 
Richards,  125  Cal.  427,  58  Pac.  65;  Kelly  v.  Steele  (Idaho),  72  Pac. 
887;  Mapes  v.  Scott,  4  111.  App.  268;  Cofer  v.  Echerson,  6  Iowa, 
502;  Tarvin  v.  Walker's  Creek  etc.  Co.,  109  Ky.  579,  60  S.  W.  185; 
Squire  v.  Hewlett,  141  Mass.  597,  6  N.  E.  779;  State  v.  Second  Judi- 
cial Dist.  Ct.,  13  Mont.  416,  34  Pac.  609;  Smith  v.  White,  62  Neb. 
56,  86  N.  W.  930;  Corey  v.  Lon^,  12  Abb.  Pr.,  N.  S.,  427;  Thompson  v. 
Sherrard,  35  Barb.  593,  22  How.  Pr.  155;  Gregory  v.  Grgeory,  1 
Jones  &  S.  (33  N.  Y.  Super.  Ct.)  1;  McCool  v.  McNamara,  19  Abb. 
N.  C.  344;  Guernsey  v.  Powers,  9  Hun,  73;  Willis  v.  Corlies,  2  Edw. 
Ch.  281;  Rollins  v.  Henry,  77  N.  C.  467;  Twitty  v.  Logan,  80  N.  C. 
69;  Bryan  v.  Moring,  94  N.  C.  694;  Emerson's  Appeal,  95  Pa.  St. 
258;  De  Walt  v.  Kinard,  19  S.  C.  286;  Pearson  v.  Gillenwaters,  99 
Tenn.  446,  63  Am.  St.  Rep.  844,  42  S.  W.  9;  Davis  v.  Reaves,  2  Lea 
(Tenn.),  649;  Sengf elder  v.  Hill,  16  Wash.  355,  58  Am.  St.  Rep.  36, 
47  Pac.  757;  Spokane  v.  Amsterdamsch  Trustees  Kantoor,  18  Wash. 
81,  50  Pac.  1088;  Union  Boom  Co.  v.  Samish  River  Boom  Co.,  33 
Wash.  144,  74  Pac.  53;  Freer  v.  Davis,  52  W.  Va.  35,  94  Am.  St.  Rep. 
910,  43  S.  E.  172. 

In  Talbot  v.  Hope  Scott,  supra,  Vice-Chancellor  Woods  says:  "That 
there  may  be  a  possible  case  in  which  this  court  would  interfere  to 
prevent  absolute  destructive  waste,  where  the  value  of  the  property 
would  be  destroyed  if  no  steps  were  taken,  I  can  understand;  but  I 
have  found  nothing  that  bears  any  resemblance  to  the  doctrine  con- 
tended for,  that  at  the  instance  of  a  person  alleging  a  mere  legal 
title,  this  court  will  interfere  against  another  who  is  in  possession, 

to    deprive   him    of    that    possession The   ground    of    the    rule 

adopted  by  the  court,  in  this  respect,  I  conceive  to  be  extremely 
sound;  the  general  ground  being  that  the  court  cannot  interfere  with 
a  legal  title  of  any  description,  unless  there  be  some  equity  by  which 
it  can  affect  the  conscience  of  the  defendant.  Where  there  is  an 
entire  want  of  privity  between  the  plaintiff  and  the  defendant,  and 
the  defendant  is  simply  a  wrong-doer  at  law,  this  court  does  not  take 
upon  itself  to  interpose,  unless  in  very  exceptional  cases."  In  Car- 
row  V.  Ferrior,  L.  R.  3  Ch.  App.  719,  the  same  judge  points  out  th© 
distinction  between  the  interference  of  the  court  to  protect  real  prop- 
erty, and  its  interference  to  protect  personal  estate  pending  a  litiga- 
tion as  to  probate.     "It  may  be  true,  on  the  highest  general  prin- 


155  RECEIVEES;   CONFLICTING  TITLES  TO  LAND.         §  87 

in  the  end.^^  If  the  object  of  the  receiver  is  to  preserve 
the  rents  and  profits,  there  must  be  danger  that  they 
will  be  squandered  and  lost  by  reason  of  the  insolvency 

ciples,  that  there  ought  to  be  no  difference  in  this  respect  between 
real  and  personal  property,  but  our  law  clearly  regards  them  very 
diflFerently,  and  looks  upon  the  person  in  possession  of  real  estate  as 
entitled  to  keep  it  till  some  one  else  shows  a  better  title.  Unless 
the  person  in  possession  of  real  estate  is  affected  by  some  equity,  this 
court  will  not  interfere.  The  consideration  is  not  unimportant  that 
personal  estate  may  be  made  way  with  altogether,  if  this  court  does 
not  interfore,  but  only  the  rents  of  real  estate  can  be  lost.  But,  in 
my  opinion,  the  leading  principle  governing  the  case  is  that  this 
court  does  not  interfere  unless  there  is  an  equity." 

Under  the  provision  of  the  Judicature  Act  of  1873,  §  25,  para- 
graph 8,  permitting  the  appointment  of  a  receiver  "in  all  cases  where 
it  shall  appear  to  the  court  to  be  just  or  convenient,"  Talbot  v. 
Hope  Scott  and  Carrow  v,  Ferrior  are  no  longer  law  in  England,  but 
the  court  has  power  to  appoint  a  receiver,  pending  an  ^action  to  re- 
cover possession  of  land,  although  the  plaintiff's  title  is  legal  and  the 
defendant  is  in  possession:  Berry  v.  Keen,  [1882]  51  L.  J.  (Ch.)  912; 
Foxwell  V.  Van  Greetten,  [1897]  1  Ch.  64  (insufficient  grounds); 
John  V.  John,  [1898]  2  Ch.  573.  In  the  last  case  it  was  said  that 
the  discretion  of  the  court  must  be  exercised  with  a  view  to  all  the 
circumstances  of  the  case;  that  it  is  important  to  bear  in  mind  the 
position  of  the  tenants,  who,  if  the  defendant  is  not  a  person  of  un- 
doubted solvency,  and  remains  in  receipt  of  the  rents,  may  be  called 
upon  to  pay  twice  over  if  the  plaintiff  succeeds;  and  that  the  court 
has  also  to  consider  the  probability  of  the  plaintiff's  succeeding,  and 
the  length  of  the  defendant's  possession,  and  whether  he  has  any 
prima  facie  title. 

93  Kyder  v.  Bateman,  93  Fed.  16;  Gregory  v,  Gregory,  33  N.  Y. 
Super.  Ct.  (1  Jones  &  S.)  1;  Cofer  v.  Echerson,  6  Iowa,  502.  See, 
also,  as  to  probability  of  plaintiff's  recovery,  ante,  §  66;  Owen  v. 
Homan,  3  Macn.  &  G.  378,  412,  4  H.  L.  Cas.  997;  Bainbrigge  v.  Bad- 
deley,  3  Macn.  &  G.  413,  419.  In  the  latter  case  the  contest  was  as 
to  the  validity  of  a  will,  under  which  the  defendant  in  possession 
of  the  property  claimed  title.  The  chancellor,  Lord  Truro,  says: 
"When  the  parties  are  litigating  the  right  to  property,  and  the 
litigation  depends  upon  questions  then  to  be  decided  at  law,  what  are 
the  circumstances  in  which  the  jurisdiction  is  to  be  exercised  and 
is  properly  applicable  in  granting  a  receiver?  There  are,  I  appre- 
hend, two  grounds,  and  two  only:  First,  that  there  is  a  reasonable 
probability  of  success  on  the  part  of  the  plaintiff;  and  second,  that 

the  property,  the  subject  of  the  suit,  is  in  danger I  apprehend 

I  ought  to  presume,  until  I  have  the  case  so  before  me  as  to  enable 


{  87  EQUITABLE    KEMEDIES.  156 

of  the  party  in  possession,  who  will  be  unable  to  respond 
to  a  final  decree.^^ 

In  accordance  with  the  rule  as  above  stated,  receivers 
have  been  appointed  in  suits  to  cancel  conveyances  ob- 
tained by  fraud  or  undue  influence,  where  there  was  a 
strong  probability  of  the  plaintiff's  success  in  the 
suit;^^  or  where  the  plaintiff  shows  a  right  to  the  im- 
mediate possession  of  the  land,  together  with  the  in- 
solvency of  the  defendant  in  possession  and  imminent 
danger  to  the  property  ;^^  or  where  the  land  is  claimed 
by  both  parties,  and  both  claim  to  be  in  possession,  in- 
terfering with  each  other  in  harvesting  the  crops  grown 
by  each  respectively  and  threatening  each  other  with  as- 
saults and  forcible  resistance.^'^ 

The  relief  has  sometimes  been  granted  to  the  plain- 
tiff after  a  judgment  in  his  favor,  pending  a  motion  for 

me  judicially  to  form  an  opinion  upon  the  subject,  that  the  will  is 
good.  This  court  ought  not,  in  any  case,  to  disturb  the  possession 
of  a  party  who  stands  upon  his  legal  title,  without  a  reasonable  prob- 
ability that  the  plaintiff  will  ultimately  succeed I  do  not  see 

any  such  reasonable  probability  here;  not  at  all  using  that  ex- 
pression to  prejudice  the  plaintiff's  title,  or  to  express  any  opinion 
of  it.  His  case  may  be  the  strongest  that  ever  was  presented;  it 
may,  when  it  comes  to  be  laid  before  the  proper  tribunal,  entitle  him 
to  a  verdict  without  any  doubt  or  hesitation;  but  I  have  not  the  ma- 
terials before  me  to  warrant  me  in  coming  to  that  conclusion." 

94  Vause  V.  Woods,  46  Miss.  120;  Bryan  v.  Moring,  94  N.  C.  694. 
See,  also,  Vizard  v.  Moody,  117  Ga.  67,  43  S.  E.  426,  where  a  receiver 
was  appointed.  But  even  in  such  a  case,  a  bond  to  account  for  the 
rents  in  a  sum  to  be  designated  by  the  court,  may  obviate  the  neces- 
sity of  a  receiver:  Spokane  v.  Amsterdamscb  Trustees  Kantoor,  18 
Wash.  81,  50  Pac.  1088. 

95  Huguenin  v.  Basely,  13  Ves,  105;  Stilwell  v.  Wilkins,  Jacob, 
280. 

96  Smith  v.  Lusk,  119  Ala.  394,  24  South.  256;  Nesbitt  v.  Turren- 
tine,  83  N.  C.  535  (acrtion  by  lessor  against  lessee);  and  see  Mayo  v. 
McPhaul,  71  Ga.  758;  Davis  v.  Taylor,  86  Ga.  506,  12  S.  E,  881  (right 
lost  by  laches);  Troughber  v.  Akin,  109  Tenn.  451,  73  S.  W.  118  (sea 
this  opinion  for  a  careful  review  of  the  Tennessee  cases  on  the  ques- 
tion of  appointment). 

97  Hlawacek  v.  Bohman,  51  Wis.  92,  8  N.  W.  102. 


157  KECEIVEES;   CONFLICTING  TITLES  TO  LAND.         S  8T 

a  new  trial,  or  the  like,  where  it  was  necessary  to  pro- 
tect the  proceeds  of  the  land  from  loss  at  the  hands 
of  an  insolvent  defendant.®^ 

In  North  Carolina  the  relief  is  granted  with  some 
freedom,  although  the  statute  authorizing  the  relief 
seems  to  be  merely  declaratory  of  the  general  rule  of 
equity  ;^^  and  it  is  held,  in  several  instances,  that  a  re- 

98  See  "Whitney  v,  Buckman,  26  Cal.  447;  Collier  v.  Sapp,  49  Ga. 
93;  Atlas  Sav.  etc.  Assn.  v.  Kirklin,  110  Ga.  572,  35  S.  E.  772  (one 
in  whose  favor  it  has  been  finally  adjudged  that,  as  against  an  insol- 
vent person,  the  former  has  the  title  to,  and  the  right  to  the  pos- 
session of,  given  realty,  but  who  is  under  an  injunction,  sued  out  at 
the  instance  of  others,  preventing  him  from  taking  possession,  is 
entitled  to  have  a  receiver  appointed  to  collect  and  hold  rents  which 
such  insolvent  is  seeking  by  judicial  process  to  collect  from  the  ten- 
ants to  whom  he  had  undertaken  to  rent  the  premises) ;  Stephens  v. 
Kaga,  142  Ind.  523,  41  N.  E.  930  (receiver  to  take  charge  of  crops 
rendered  unnecessary  by  a  statutory  bond,  given  by  defendant  on  mo- 
tion for  a  new  trial,  to  pay  all  costs  and  damages  which  shall  be  re- 
covered against  him).  Of  course,  a  receiver  will  not  be  granted, 
pending  appeal,  in  favor  of  a  party  against  whom  judgment  in  an 
ejectment  suit  has  been  rendered:  Corbin  v.  Thompson,  141  Ind.  128, 
40  N.  E.  533  ("to  have  entertained  the  appellant's  petition  was  to 
deny  the  force  and  effect  of  a  judgment  adverse  to  the  very  claim 
which  his  petition  asserted"). 

99  Code  N.  C,  §  379:  "A  receiver  may  be  appointed,  before  judg- 
ment, on  the  application  of  either  party,  when  he  establishes  an  ap- 
parent right  to  property  which  is  the  subject  of  the  action,  and 
which  is  in  the  possession  of  an  adverse  party,  and  the  property,  or 
its  rents  and  profits,  are  in  danger  of  being  lost,  or  materially  in- 
jured or  impaired."  Under  this  statute,  "where  a  party  to  an  ac- 
tion asks,  as  affirmative  relief,  the  possession  of  land,  and  alleges  that 
his  adversary,  who  wrongfully  withholds  it,  is  insolvent,  and  the  lat- 
ter directly  admits  or  fails  to  deny  the  allegation,  it  only  remains 
for  the  plaintiff,  in  order  to  establish  his  right  to  the  appointment  of 
a  receiver  to  take  charge  of  the  rents  and  profits,  to  show  that  he 
hag  set  up  in  an  affidavit  filed  under  the  sanction  of  the  court,  or  in 
a  verified  pleading  in  the  cause,  used  as  an  affidavit,  an  apparently 
good  title,  either  not  controverted  at  all,  or  not  unequivocally  and 
sufficiently  denied  by  the  affidavits  of  the  claimant  in  posession": 
Lovett  V.  Slocumb,  109  N.  C.  110,  13  S.  E.  893.  And  a  statute  re- 
quiring the  defendant  in  ejectment  to  give  a  bond  for  costs  and  dam- 
ages before  putting  in  a  defense  to  the  action  does  not  abridge  the 


5  87  EQUITABLE   EEMEDIES.  158 

ceiver  may  be  awarded  against  an  insolvent  plaintiff  in 
possession,  in  a  proper  case.^^*^ 

A  receiver  of  mining  property,  the  title  to  which  is 
in  litigation,  is  rarely  appointed,  and  still  more  rarely 
is  such  receiver  directed  to  extract  the  ore,  since  that  is 
of  the  very  substance  of  the  estate.^*^^  Exceptional  cases 
are  those  where  there  are  timbers  to  be  repaired,  or 
water  to  be  controlled ;  or,  in  the  case  of  oil-wells,  when 
it  is  necessary  for  the  preservation  of  the  claim  that 
the  work  be  continued  to  prevent  the  oil  from  being- 
drawn  off  by  the  operation  of  wells  on  adjoining 
ground;  or  where  a  receiver  is  necessary  in  order  that 
the  annual  work  required  by  law  may  be  performed  for 
the  benefit  of  the  party  who  may  ultimately  be  adjudged 
entitled  to  the  ground.^  "^ 

power  of  the  court  to  appoint  a  receiver  to  secure  the  rents  and 
profits:  Kron  v.  Dennis,  90  N.  C.  327.  And  where  the  plaintiff  was 
charged  with  cutting  and  carrying  away  timber  of  peculiar  value,  he 
was  compelled  to  give  a  bond  to  answer  possible  damages,  and  a 
receiver  was  appointed  to  take  and  state  accounts  of  the  timber 
so  cut  until  the  cause  should  be  heard  on  its  merits,  although  the 
plaintiff  was  solvent:  John  L.  Roper  Lumber  Co.  v.  Wallace,  93  N.  C. 
23.  See,  further,  Stith  v.  Jones,  101  N.  C.  360,  8  S.  E.  151  (receiver 
appointed  on  conflicting  evidence). 

100  Horton  v.  White,  84  N.  C.  297  (against  plaintiff  suing  in  forma 
pauperis);  McNair  v.  Pope,  96  N.  C.  502,  2  S.  E.  54;  John  L.  Eoper 
Lumber  Co.  v.  Wallace,  93  N.  C.  23  (receiver,  for  a  special  purpose, 
against  a  solvent  plaintiff). 

101  Tornanses  v.  Melsing,  106  Fed.  775,  784,  45  C.  C.  A.  615;  ap- 
proved in  Heinze  v.  Butte  &  Boston  Consol.  Min.  Co.,  61  C.  C.  A.  63, 
126  Fed.  1,  11.  See,  also,  Thomas  v.  Nantahala  Marble  etc.  Co.,  58 
Fed.  485,  7  C.  C.  A.  330  (injunction  proper,  but  not  receiver);  Big- 
bee  v.  Summerour,  101  Ga.  201,  28  S.  E.  642  (a  most  vigorous  and  con- 
vincing opinion);  Hickey  v.  Parrot  Silver  etc.  Min.  Co.,  25  Mont. 
164,  64  Pac.  330;  Stith  v.  Jones,  101  N.  C.  360,  8  S.  E.  151  (receiver 
not  to  operate  the  mine,  bat  to  receive  the  proceeds) ;  Chicago  &  Al- 
legheny Oil  etc.  Co.  V.  XJ.  S.  Petroleum  Co.,  57  Pa.  St.  83. 

102  Tornanses  v.  Melsing,  106  Fed.  775,  784,  45  C.  C.  A.  615,  by 
Eoss,  Cir.  J.;  Nevada  Sierra  v.  Home  Oil  Co.,  98  Fed.  673  (receiver 
denied).  For  other  instances  where  receivers  were  appointed,  under 
special   circumstances,   see,   in   addition   to   the   partition   cases   meo- 


159  EECEIVERS   IN  PLACE   OF   TRUSTEES.         §§  88,39 

§  88.  Class  III:  In  General — "The  third  class  em- 
braces those  cases  in  which  the  person  holding  title  to 
the  property  is  in  a  position  of  trust  or  of  quasi  trust, 
and  is  violating  his  fiduciary  duties  by  misusing,  mis- 
applying, or  wasting  the  property,  and  is  thereby  en- 
dangering the  rights  of  other  persons  beneficially  in- 
terested. In  many,  but  not  in  all,  the  instances  fall- 
ing within  this  class,  the  plaintiff  has,  and  is  seeking 
to  enforce,  some  equitable  estate  or  interest;  but  what- 
ever be  the  nature  of  his  right,  the  ground  of  the  rem- 
edy is  always  the  misconduct  of  the  party  holding  the 
title,  and  the  consequent  danger  of  loss."^°^ 

§  89.  (1)  Receivers  in  Suits  Against  Trustees,  for  Breach 
of  Trust — Courts  will  not  interfere  with  trustees'  pos- 
session by  a  receiver  unless  there  is  real  danger  from 
their    misconduct.^°^     Instances    of   such    misconduct, 

tioned  in  the  last  section,  Ulman  v.  Clark,  75  Fed.  868  (coal  mine; 
receiver's  appointment  did  not  disturb  defendants'  operations,  but 
merely  secured  the  rents  and  profits,  which  were  in  danger  of  being 
scattered  among  many  persons,  thus  imposing  on  the  plaintiff  the 
necessity  of  bringing  many  suits)  ;  Stith  v.  Jones,  101  N.  C  360,  8 
S.  E.  151. 

103  4  Pom.  Eq.  Jur.  §  1334. 

104  4  Pom.  Eq.  Jur.,  §  1334,  note;  72  Am.  St.  Eep.  95;  Barkley  v. 
Eeay,  2  Hare,  306;  Browell  v.  Eeed,  1  Hare,  434;  Latham  v.  Chafee, 
7  Fed.  525;  Vose  v.  Eeed,  1  V^oods,  647,  651,  Fed.  Cas.  No.  17,011; 
Orphan  Asylum  v.  McCartee,  Hopk.  Ch.  (N.  Y.)  429;  Poythress  v. 
Poythress,  16  Ga.  406.  "The  court  would  not,  at  the  instance  of  one 
of  several  parties  interested  in  an  estate,  displace  a  competent  trus- 
tee, or  take  the  possession  from  him,  unless  he  willfully  or  ignorantly 
permitted  the  property  to  be  placed  in  a  state  of  insecurity,  which 
due  care  or  conduct  would  have  prevented":  Barkley  v.  Eeay,  supra. 
Where  the  defendant  had  been  in  possession  of  the  property  and  ad- 
ministering the  trust  for  a  period  of  over  seven  years,  the  court 
would  not,  on  a  bill  for  his  removal,  appoint  a  receiver,  before  an- 
swer and  a  hearing  on  the  merits,  if  there  was  not  great  danger  that 
the  complainant  would  suffer  irreparable  loss  by  any  delay:  Latham 
V.  Chafee,  supra.  Even  the  mingling  of  the  trust  funds  with  his  own, 
by  one  of  the  trustees,  does  not  render  a  receiver  necessary,  when  it 
is  not  alleged   that   the  fund  is  in   danger:   Orphan  Asylum   v.   Mc- 


§  89  EQUITABLE   REMEDIES.  160 

fraudulent  or  negligent,  resulting  in  danger  to  the  trust 
property  and  justifying  the  appointment  of  a  re- 
ceiver,^"''  are  as  follows:  Where  there  was  an  abuse  of 
trust  by  an  insolvent  party  in  possession  of  real  prop- 
erty, whereby  the  rents  and  profits  were  exposed  to 
imminent  .danger  of  loss;^°^  where  a  trustee  of  lands  is 
insolvent,  has  sold  parts  of  the  trust  property  and  mis- 
applied the  proceeds,  has  never  accounted  to  the  plain- 
tiff for  the  rents  and  profits,  but  has  applied  the  same 
to  his  own  use,  and  has  proposed  to  sell  other  parts  of 
the  trust  property  within  a  short  time  before  the  plain- 
tiff's application  for  an  injunction  and  receiver  ;^°'' 
where  the  trustee  has  conveyed  lands  in  fraud  of  the 
equitable  interest  of  the  cestui  que  trust ;'^^^  where  the 
trustee,  in  violation  of  the  condition  of  his  trust,  loaned 
trust  funds  to  a  firm  of  which  he  was  a  member,  which 
afterwards  became  insolvent  ;^°'  where  trustees  of  lease- 
hold property  had  failed  to  keep  the  premises  in  proper 

Cartee,  supra.  The  court  is  extremely  reluctant  to  interfere  where 
the  trust  is  vested  by  the  legislature  in  state  officers:  Vose  v.  Eeed, 
supra. 

The  refusal  of  one  of  several  trustees  to  act  does  not  necessitate 
the  appointment  of  a  receiver:  Browell  v.  Eeed,  1  Hare,  434;  com- 
pare Tait  V.  Jenkins,  1  Younge  &  C.  Ch.  492;  otherwise  where  some  of 
the  trustees  refuse  to  act,  and  all  the  parties  in  interest  are  before 
the  court  and  consent  to  the  appointment:  Brodie  v.  Barry,  3  Mer. 
695. 

105  "It  is  the  impending  danger  to  the  trust  fund  which  induces 
the  court  to  interpose  with  these  extraordinary  remedies  in  the  case 
of  an  express  trust,  where  a  trustee  has  failed  to  take  possession  of 
the  trust  property,  and  has  allowed  it  to  remain  in  the  hands  of  the 
debtor,  who  may  dispose  of  it  at  any  moment,  or  where  he  is  about 
to  part  with  it  in  a  fraudulent  manner,  so  that  it  will  be  lost  to  the 
trust  estate,  or  where  the  trustee  is  clearly  proven  to  have  been 
guilty  of  acts  of  fraud,  so  that  the  fund  is  not  safe  in  his  hands  for 
any  length  of  time":  Latham  v.  Chafee,  7  Fed.  525. 

106  Chase's  Case,  1  Bland  Ch.  206,  17  Am.  Dec.  277. 

107  Albright  v.  Albright,  91  N.  C.  220. 

108  Gunn   V.   Blair,    9   Wis.    352. 

109  North  Carolina  K.  E.  Co.  v.  Wilson,  81  N.  C.  223. 


161  EECEIVERS  IN  PLACE   OF  TRUSTEES.  §  90 

repair,  so  as  to  prevent  a  forfeiture  of  tlie  leasehold  ;^^*^ 
where  the  rents  of  the  property  had  not  been  collected, 
and  encumbrancers  were  threatening  to  take  possession 
of  the  estate.^ ^^  A  receiver  has  been  appointed  in  an 
action  to  compel  an  accounting,  where  the  trustee 
wrongfully  withheld  the  fund  because  of  an  alleged 
claim  for  damages  against  the  beneficiary  arising  from 
a  breach  of  contract.^  ^^  For  further  instances,  see  the 
next  two  sections. 

§  90.  Same;  Assignees  for  Benefit  of  Creditors. — In  the 
following  cases  the  validity  of  the  assignment  was  not 
attacked,  but  a  receiver  was  sought  on  the  ground  of 
some  incapacity  or  misconduct  of  the  assignee,  whereby 
the  interests  of  the  creditors  were  supposed  to  be  im- 
periled.^ ^^  Such  receiver  was  not  appointed,  on  the 
allegation  of  the  insolvency  of  one  of  the  sureties  of 
the  assignee,  where  there  was  no  allegation  of  misfeas- 
ance or  misappropriation  on  the  latter's  part,  since  the 
creditors  had  a  perfect  security  in  the  statutory  bond 
given  by  the  assignee.^ ^*  Upon  general  allegations  of 
benefits  to  be  derived  from  the  appointment,  the  court 
has  no  authority  to  place  an  estate,  assigned  for  the 
benefit  of  creditors,  in  the  hands  of  a  receiver  to  be  sold, 
upon  the  application  of  a  preferred  creditor,  though 

110  In  re  Fowler,  16  Ch.  D.  723. 

111  Hart  V.  Tulk,  6  Hare,  611;  and  where  rents  have  fallen  in  ar- 
rears, owing  to  dissensions  among  the  trustees:  Wilson  v.  Wilson,  2 
Kean,   249. 

112  Hagenback  v.  Hagenback  etc.  Co.,  59  Fed.  14. 

In  England,  under  the  provisions  of  the  Judicature  Act,  where  the 
defaulting  trustee  is  out  of  the  jurisdiction,  so  that  service  of  a 
writ  of  attachment  could  not  be  effected,  a  judgment  against  him 
for  the  payment  of  money  into  court  may  be  enforced  by  the  ap- 
pointment of  a  receiver  of  his  equitable  interest  in  property:  In  re 
Coney,  L.  R.  29  Ch.  D.  993. 

113  See  72  Am.  St.  Rep.  43-45,  note. 

114  Dozier  v.  Logan,  101  Ga.  173,  28  S,  E.  612. 

Equitable  Remedies,  Vol.  I  — 11 


I  90  EQUITABLE    KEMEDIES.  162 

the  assignor  and  assignee  consent  to  the  appoint- 
ment.^^°  Nor  are  the  youth  and  inexperience  of  an  as- 
signee, and  the  fact  that  he  is  not  required  to  give  a 
bond,  and  that  his  property  is  inconsiderable  when  com- 
pared with  the  value  of  the  property  conveyed  by  the 
assignment,  sufficient  to  justify  his  removal  and  the  ap- 
pointment of  a  receiver  in  his  stead.^^®  If  a  trustee 
with  power  to  continue  the  assignor's  business  is  un- 
faithful or  incompetent,  the  remedy  is  to  require  that 
he  furnish  ample  security  for  the  protection  of  those 
interested,  or  that  he  be  removed,  and  another  who  is 
suitable  be  substituted.  It  would  be  an  extreme  case, 
if  such  could  exist,  which  would  call  for  the  appoint- 
ment of  a  receiver  to  execute  an  express  trust  continu- 
ous in  its  nature,  and  not  merely  to  hold  pendente  lite 
for  the  removal  of  the  trustee.^  ^"^ 

The  cases  seem  to  indicate  that  receivers  are  com- 
monly appointed  with  somewhat  greater  freedom  than 
in  other  classes  of  trusts.  Thus,  insolvency  of  the  as- 
signee has  been  held  to  be  a  good  cause  for  a  receiver 
of  his  trust.^^®  Refusal  of  the  assignee  to  proceed  with 
the  execution  of  the  trust,^^^  or  his  resignation,^  2°  pre- 
sents a  proper  ground  for  a  receiver  to  protect  the  as- 
sets for  the  benefit  of  the  creditors.  The  violation  of 
his  duty  to  keep  the  trust  fund  separate  and  distinct 
from  his  individual  funds,  and  a  separate  bank  account, 

115  Penzel  Grocer  Co.  v.  VP^illiams,  53  Ark.  81,  13  S.  W.  736. 
lie  Jones  V.  McPhillips,  77  Ala,  314. 

11 V  Etowah  Min.  Co.  v.  Wills  Val.  Min.  etc.  Co.,  106  Ala.  492,  17 
South,  522. 

118  Haggarty  v.  Pittman,  1  Paige,  298,  19  Am.  Dec.  434;  City 
Nat.  Bank  v.  Bridges,  114  N.  C.  381,  19  S.  E.  642  (insolvent  trustee 
fails  to  give  a  bond  when  required  by  the  court);  Connah  v.  Sedg- 
wick, 1  Barb.  210;  Eeed  v.  Emery,  8  Paige,  417,  35  Am.  Dec.  720. 

119  Suydam  v.   Dequindre,  Harr.   Ch.    (Mich.)    347. 

120  McFerran  v.  Davis,  70  Ga.  661;  or  upon  any  vacancy:  Andrews 
V.  Wilson's  Assignee,  114  Ky.  671,  71  S.  W.  890. 


163  EECEIVEES  IN  PLACE  OF  EXECUTORS,  ETC.  §  91 

to  the  injury,  or  great  risk  of  injury,  of  those  who  may 
be  ultimately  entitled  to  the  fund,  requires  the  substitu- 
tion of  a  receiver.^ 2^  Gross  mismanagement,  with  fail- 
ure to  comply  with  the  terms  of  the  assignment,  result- 
ing in  danger  of  waste  of  the  assets,  clearly  justifies 
the  interposition  of  the  court  ^-^ 

§  91.  (2)  In  Suits  Against  Executors  and  Administrators. 
A  strong  case  is  required  to  induce  the  appointment 
of  a  receiver  to  take  assets  from  the  custody  of  an  exec- 
utor or  administrator,  displacing  his  authority.  There 
must  be  actual  misconduct  or  fraud,  and  immediate 
danger  of  loss,  or  the  appointment  of  a  receiver  cannot 
be  justified.^ ^^     Such  a  case  is  not  presented  by  charges 

121  Wagner  v.  Coen,  41  W.  Va.  351,  23  S.  E.  735;  or  continuing  to 
carry  on  the  business  of  the  assignor,  and  keeping  no  account  of  the 
sales  of  the  assigned  property:  Connah  v.  Sedgwick,  1  Barb.  210;  Hart 
V.  Crane,  7  Paige,  37. 

122  Jones  V.  Dougherty,  10  Ga.  273;  Cohen  &  Co.  v.  Morris  &  Co., 
70  Ga.  313;  Goldsmith  v.  Fletcheimer,  16  Ivy.  Law  Eep.  433,  28  S.  W. 
211.  See,  also,  Eobinson  v.  Worley,  19  Ky.  Law  Eep.  791,  42  S.  W. 
95. 

123  Eandle  v.  Carter,  62  Ala.  95,  102,  where  it  is  further  said: 
"The  executor  is  appointed  by  the  testator,  who  has  the  right  to 
declare  in  whom  the  management  of  his  estate  after  his  death  shall  be 
reposed.  The  administrator  derives  his  authority  from,  and  is,  in 
a  qualified  sense,  the  ofiicer  of  another  court  of  exclusive  jurisdiction, 
compelled  to  give  and  keep  a  bond,  with  sufficient  sureties,  for  the 
prompt  and  faithful  discharge  of  the  trusts  of  the  administration. 
The  court  is,  therefore,  reluctant  to  interfere  with  them  by  the  ap- 
pointment of  a  receiver A  different  rule  obtains,  and    should 

obtain,  than  in  the  case  of  trustees.  The  court  of  probate  has,  by 
the  constitution,  a  general  jurisdiction  over  the  grant  of  letters  testa- 
mentary, and  of  administration,  in  which  is  involved  the  power  of 
revocation.  The  grant  may  be  revoked  whenever  gross  misconduct 
is  shown,  or,  whenever  a  necessity  exists,  additional  security  may  be 
required.  Protection  against  loss  to  creditors,  legatees,  or  next  of  kin, 
and  security  for  a  faithful  administration,  are  within  the  power  of 
the  parties  and  the  competency  of  that  court.  There  can  but  seldom 
be  a  necessity  for  the  exercise  of  any  other  preventive  or  protective 
remedy  than  such  as  that  court  can  afford,  and  hence,  though  a  court 


f  91  EQUITABLE    KEMEDIES.  164 

stated  on  information  and  belief,^ -^  or  otlierwise  lack- 
ing in  certainty.^ ^^  The  mere  poverty  of  the  executor 
does  not  justify  his  removal,  in  the  absence  of  proof  of 
danger  of  loss  to  the  estate.^  ^®  Disagreement  between 
executors  as  to  the  management  of  the  estate  does  not 
warrant  the  interposition  of  the  court  by  means  of  a 
receiver,i27  Where  the  application  is  based  on  the 
executor's  incompetency  and  misconduct,  his  resigna- 
tion and  the  appointment  of  an  administrator  de  bonis 
non  remove  the  ground  for  a  receiver.^  ^^  The  relief  is 
said  to  be  designed  to  prevent  future  injury,  and  not 
to  redress  past  grievances.^ ^^ 

Notwithstanding  the  emphatic  expressions  of  reluc- 
tance to  interfere  noted  above,  it  has  been  observed 
that  the  "strong"  or  "extraordinary"  cases  in  which  a 
receiver  may  be  appointed  seem  to  be  quite  common 
in  chancery  practice.^ ^'^     Any  serious  misconduct,  gross 

of  equity  has  the  jurisdiction  to  appoint  a  receiver  of  the  assets,  prac- 
tically taking  the  administration  into  its  hands,  the  jurisdiction  is  not 
exercised,  unless  there  is  manifest  danger  of  loss  which  may  be  ir- 
reparable." See,  also,  substantially  to  the  same  effect,  Werborn  v. 
Kahn,  93  Ala.  201,  9  South.  729;  Haines  v.  Carpenter,  1  Woods,  262, 
Fed.  Cas.  No.  5905,  affirmed  in  91  U.  S.  254,  23  L.  ed.  345;  Dougherty 
V.  McDougald,  10  Ga.  121;  Harrup  v.  Winslet,  37  Ga.  655;  Powell  v. 
Quinn,  49  Ga.  523;  Pom.  Eq.  Jur.,  §  1334,  note;  72  Am.  St.  Kep.  63- 
66,  note. 

124  Haines  v.  Carpenter,  1  Woods,  262,  Fed.  Cas.  No.  5905. 

125  Powell  V.  Quinn,  49  Ga.  523. 

126  Knight  V.  Duplessis,  1  Ves.  324;  Anonymous,  12  Ves.  4;  How- 
ard V.  Papera,  1  Madd.  (86)  141;  Johns  v.  Johns,  23  Ga.  31;  Fair- 
bairn  V.  Fisher,  4  Jones  Eq.  390. 

127  Wanneker  v.  Hitchcock,  38  Fed.  383;  Fairbairn  v.  Fisher,  4 
Jones  Eq.  390. 

128  Lunsford  v.  Lunsford,  122  Ala.  242,  25  South.  171. 

129  Dougherty  v.  McDougald,  10  Ga.  121. 

130  See  note,  72  Am.  St.  Eep.  651.  In  Ex  parte  Walker,  25  Ala. 
81,  it  was  said:  "Nothing  is  more  common  in  chancery  practice  than 
the  appointment  of  receivers  in  suits  against  executors,  when  there 
u  danger  to  the  fund  without  such  appointment;  so,  also,  if  he  has 
wasted  the  effects,  or  in   other  respects  has   misconducted    himself. 


165  EECEIVERS  IN  MORTGAGE  FORECLOSURE.  S  92 

mismanagement,  misuse,  or  misappropriation  of  funds 
by  an  irresponsible  executor  or  administrator  which 
imperils  the  estate  justifies  the  appointment  of  a  re- 
ceiver.^ ^^  While  mere  insolvency  of  the  executor  is 
not  sufficient,  an  actual  adjudication  of  bankruptcy,  it 
has  been  held,  presents  a  strong  ground  ;^^^  and  his  re- 
moval from  the  state,  leaving  both  his  cestui  que  trust 
and  the  trust  estate  within  the  state,  amounts  to  an 
abandonment  of  his  trust,  and,  it  seems,  renders  it  the 
duty  of  the  court  to  appoint  a  receiver.^  ^^ 

§  92.  (3)  Receivers  in  Suits  to  Enforce  Mortgages — Eng- 
lish Rule — In  England,  by  the  rule  that  prevailed  prior 
to  the  year  1860,  an  equitable  mortgagee  was,  in  gen- 
eral, alone  entitled  to  a  receiver,  because  a  legal  mort- 
gagee could  at  any  time  gain  possession  after  a  default, 
and  thus  secure  the  rents  and  profits.^  ^^     Yet  where, 

Although  mere  poverty,  of  itself,  may  not  furnish  sufficient  ground 
for  the  appointment  of  a  receiver,  as  against  an  executor,  yet  where 
it  is  coupled  with  other  facts  or  circumstances,  showing  that  he  has 
proceeded  not  in  accordance  with  law  (as  where  he  has  made  private 
sales  of  the  property  of  the  estate,  or  is  dealing  with  it  on  his  private 
account),  especially  where  it  is  doubtful  whether  he  is,  in  fact,  the 
legal  representative,  or  is  not  shorn  of  his  authority  by  removal,  the 
court,  in  all  such  cases,  should  promptly  secure  the  effects  by  placing 
them  in  the  hands  of  a  receiver." 

131  Middleton  v.  Dodswell,  13  Ves.  266  (appointment  may  be  made 
before  answer);  Ex  parte  Walker,  25  Ala.  81;  Calhoun  v.  King,  5  Ala. 
523;  V<*^erborn  v.  Kahn,  93  Ala.  201,  9  South,  729;  Chappell  v.  Akin, 
39  Ga.  177;  Ware  v.  Ware,  42  Ga.  408;  Thompson  v.  Orser,  105  Ga. 
482,  30  S.  E.  626;  Jenkins  v.  Jenkins,  1  Paige,  243;  Stairley  v.  Rabe, 
McMull.  Eq.  (S.  C.)  22;  Price  v.  Price,  23  N.  J.  Eq.  428. 

132  For  the  reason  that  there  is  no  person  to  protect  the  assets: 
Steele  v.  Cobham,  L.  R.  1  Ch.  App.  325;  and  see  Gladden  v.  Stoneman, 
1  Madd.  (86)   141,  note. 

133  Ex  parte  Galluchat,  1  Hill  Eq.  (S.  C.)  148;  Elting  v.  First  Nat. 
Bk.,  173  111.  368,  50  N.  E.  1095.  For  further  instances,  see  Marvine  v. 
Drexel,  68  Pa.  St.  362;  Du  Val  v.  Marshall,  30  Ark.  230. 

134  4  Pom.  Eq.  Jur.,  §  1334,  note  3;  27  Am.  St.  Rep.  794;  Berney  v. 
Sewell,  1  Jacob  &  W.  647,  per  Lord  El  don;  Sturch  v.  Young,  5  Beav. 


f  93  EQUITABLE   EEMEDIES.  166 

under  peculiar  circumstances,  the  legal  mortgagee 
could  not  obtain  possession,  a  receiver  might  be  ap- 
pointed ;^^^  and  the  jurisdiction  was  freely  exercised  in 
behalf  of  equitable,  as  distinguished  from  legal,  mort- 
gagees.^^* 

§  93.     General  Rule  in  United  States;  Receiver  Appointed 

When   Security  Inadequate   and  Mortgagor  Insolvent The 

rule  is  well  settled  in  a  strong  majority  of  the  states 
where  the  question  has  been  passed  upon,  that  a  receiver 
of  the  rents  and  profits  will  generally  be  appointed,  at 
the  application  of  the  mortgagee,  upon  the  commence- 
ment of  a  suit  to  foreclose  the  mortgage,  upon  a  suflQ- 
cient  showing  of  two  things:  First,  that  the  property 
covered  by  the  mortgage  is  an  inadequate  security  for 
the  payment  of  the  debt,  with  the  accrued  interest  and 

557;  Ackland  v.  Gravener,  31  Beav.  482,  per  Komilly,  M.  E.  By  the 
statute  23  &  24  Vict.,  c.  145,  §§  11-32,  it  is  provided  that  the  mort- 
gagee, in  all  cases  where  the  payment  of  the  principal  is  in  arrear  one 
year,  or  the  interest  six  months,  or  after  any  omission  to  pay  any  in- 
surance premium  which,  by  the  terms  of  the  deed,  ought  to  be  paid, 
may  obtain  the  appointment  of  a  receiver  of  the  rents  and  profits  of 
the  estate  mortgaged.  As  to  the  effect  of  authority  given  to  the  mort- 
gagee to  appoint  a  receiver,  previous  to  this  statute,  see  Jolly  v. 
Arbuthnot,  4  De  Gex  &  J.  224;  and  as  to  the  appointment  of  a  re- 
ceiver and  manager  under  the  liberal  provisions  of  the  Judicature  Act, 
see  Peek  v.  Trinsmaran  Iron  Co.,  L.  E.  2  Ch.  D.  115;  Makins  v,  Percy, 
Ibotson  &  Sons,  [1891]  1  Ch.  133;  Campbell  v.  Lloyd's  etc.  Bank.l  Ch. 
136,  note;  Edwards  v.  Standard  etc.  Stock  Syndicate,  [1893]  1  Ch. 
574;  County  etc.  Bank  v.  Colliery  Co.,  [1895]  1  Ch.  629;  Whitley  v. 
Challis,  [1892]  1  Ch.  64. 

135  Ackland  v.  Gravener,  31  Beav.  482;  Shakel  v.  Duke  of  Marl- 
borough, 4  Madd.  463;  Truman  v.  Eedgrave,  L.  E.  18  Ch.  D.  547.  See, 
also,  Warner  v.  Eising  Fawn  Iron  Co.,  3  Woods,  514,  Fed.  Cas.  No. 
17,188,  where  a  receiver  was  granted  to  enforce  the  right  to  immediate 
possession  of  the  mortgaged  premises  conferred  on  a  trustee  for  bond- 
holders by  the  deed  of  trust,  which  right  the  trustee  refused  to  exer- 
cise at  the  request  of  the  bond-holders. 

136  Pom.  Eq.  Jur.,  §  1334,  note;  Meaden  v.  Sealey,  6  Hare,  620; 
Holmes  v.  Bell,  2  Beav.  290  (equitable  mortgage  by  deposit  of  title 
deeds). 


167  BECEIVEES  IN  MORTGAGE  FORECLOSURE.  §  93 

costs  of  suit;  and  second,  that  the  mortgagor,  or  other 
person  who  is  personally  liable  for  the  payment  of  the 
debt,  is  insolvent,  or  beyond  the  jurisdiction,  or  in  such 
doubtful  financial  standing  that  an  execution  against 
him  for  any  deficiency  would  be  unavailing.^ ^'^     This 

137  United  States.— Kountze  v.  Omaha  Hotel  Co.,  107  XJ.  S.  378,  2 
Sup.  Ct.  911,  27  L.  ed.  609;  Grant  v.  Phoenix  Mut.  L.  Ina.  Co.,  121 
U.  S.  105,  7  Sup.  Ct.  841,  30  L.  ed.  905;  Shepherd  v.  Pepper,  133  U.  S. 
626,  10  Sup.  Ct.  438,  33  L.  ed.  706;  American  Nat.  Bank  v.  North- 
western Mut.  L.  Ins.  Co.,  89  Fed.  610,  32  C.  C.  A.  275;  Boyce  v.  Con- 
tinental Wire  Co.,  125  Fed.  741. 

Alabama.— Hughes  v.  Hatchett,  55  Ala.  631;  Lehman  v.  Tallassee 
Mfg.  Co.,  64  Ala.  567;  Scott  v.  Ware,  65  Ala.  174;  Lindsay  v.  American 
Mtg.  Co.,  97  Ala.  412,  11  South.  470;  Jackson  v.  Hooper,  107  Ala.  634, 
18  South.  254;  Warren  v.  Pitts,  114  Ala.  65,  21  South.  494. 

Arkansas.— Price  v.  Dowdy,  34  Ark.  285. 

California. — La  Societe  Francaise  v.  Salheimer,  57  Cal.  623;  Mont- 
gomery V.  Merrill,  65  Cal.  432,  4  Pac.  414;  Simpson  v.  Ferguson,  112 
Cal.  180,  53  Am.  St.  Rep.  201,  40  Pac.  104,  44  Pac.  484. 

Florida,— Pasco  v.  Gamble,  15  Fla.  562  (a  valuable  case). 

Georgia.— The  rule  appears  to  be  recognized  in  Hart  v.  Respeas,  89 
Ga.  87,  14  S.  E.  910. 

lUinois.— Haas  v.  Chicago  Bldg.  Soc,  89  111.  498. 

Indiana. — Main  v.  Ginthert,  92  Ind.  180;  Storm  v.  Ermantrout,  89 
Ind.  214. 

Kentucky.— Douglass  v.  Cline,  12  Bush,  608;  Wooley  v.  Holt,  14 
Bush,  788. 

Mississippi.— Hill  v.  Robertson,  24  Miss.  368;  Whitehead  v.  Wooten, 
43  Miss.  523;  Myers  v.  Estell,  48  Miss.  372;  Phillips  v.  Eiland,  52 
Miss.  721. 

Nevada.— Hyman  v.  Kelly,  1  Nev.  179. 

New  York.— Sea  Insurance  Co.  v.  Stebbins,  8  Paige,  565;  Astor 
V.  Turner,  11  Paige,  436,  43  Am.  Dec.  766;  Shotwell  v.  Smith,  3 
Edw.  Ch.  588;  Post  v.  Dorr,  4  Edw,  Ch.  412;  Quincy  v.  Cheeseman, 
4  Sandf.  Ch.  405;  Hollenbeck  v.  Donnell,  94  N.  Y.  342,  29  Hun,  94; 
Warner  v.  Gouverneur,  1  Barb.  36;  Syracuse  City  Bank  v.  Tallman, 
31  Barb.  201;  Smith  v.  Tiffany,  13  Hun,  671. 

North  Carolina.— Kerchner  v.  Fairley,  80  N.  C.  24;  Oldham  v. 
First  Nat.  Bank,  84  N.  C.  304;  Durant  v.  Crowell,  97  N.  C.  367,  2 
S.  E.  541  (alternative  of  a  receiver  or  a  bond  to  secure  to  plaintiflE 
the  rents,  profits  and  damages  to  which  he  may  be  adjudged  en- 
titled). 


1  93  EQUITABLE   BEMEDIES.  168 

relief  does  not  grow  directly  out  of  the  relations  of  the 
parties  or  the  stipulations  contained  in  the  mortgage, 
but  out  of  equitable  considerations  alone.  It  is  not, 
therefore,  a  matter  of  strict  right,  but  is  addressed  to 
the  sound  discretion  of  the  court.^^^  The  relief,  not  be- 
ing a  matter  of  strict  legal  right,  is  held,  in  many  of 
the  states  which  have  adopted  the  "lien  theory"  of  mort- 
gages,^ ^^  not  to  be  affected  by  statutes  entitling  the 

South  Carolina.— Greenwood  Loan  &  G.  Co.  v.  Childs,  67  S.  C. 
251,  45  S.  E.  167. 

Tennessee.— Henshaw  v.  "Wells,  9  Humpli.  568. 

Texas.— Rogers  v.  Southern  Pine  Co.,  21  Tex.  Civ.  App.  48,  51  S. 
W.  26;  De  Berrera  v.  Frost   (Tex.  Civ.  App.),  77  S.  W.  637. 

Virginia.— Bristow  v.  Home  Bldg.  Co.,  91  Va.  18,  20  S.  E.  946. 

Wisconsin. — Finch  v.  Houghton,  19  Wis.  150;  Schreiber  v.  Carey, 
48  Wis.  208,  4  N.  W.  124;  Morris  v.  Branchaud,  52  Wis.  187,  8  N. 
W.  883;  Sales  v.  Lusk,  60  Wis.  490,  19  N.  W.  362. 

In  Indiana,  Nebraska  and  South  Dakota,  the  statutes  are  inter- 
preted as  permitting  the  appointment  of  a  receiver  on  the  ground  of 
insufficiency  of  the  mortgaged  property  to  discharge  the  mortgage 
debt,  without  averment  or  proof  of  the  mortgagor's  insolvency: 
Ponder  v.  Tate,  96  Ind.  330;  Hursh  v.  Hursh,  99  Ind.  500;  Sellers 
V.  Stoffel,  139  Ind.  468,  39  N.  E.  52;  Jacobs  v.  Gibson,  9  Neb.  380, 

2  N.  W.  893;  Philadelphia  Mtg.  etc.  Co.  v.  Goes,  47  Neb.  804,  66  N. 
W.  843;  Waldron  v.  First  Nat.  Bank,  60  Neb.  245,  82  N.  W.  856; 
Philadelphia  Mortgage  &  T.  Co.  v.  Oyler,  61  Neb.  702,  85  N.  W. 
899;  Roberts  v.  Parker,  14  S.  Dak.  323,  85  N.  W.  591.  The  statutes 
of  several  states  contain  a  provision  that  a  receiver  may  be  ap- 
pointed "in  an  action  by  a  mortgagee  for  the  foreclosure  of  his 
mortgage  and  sale  of  the  mortgaged  property,  where  it  appears  that 
the  mortgaged  property  is  in  danger  of  being  lost,  removed,  or  ma- 
terially injured,  or  that  the  condition  of  the  mortgage  has  not  been 
performed,  and  that  the  property  is  probably  insufficient  to  dis- 
charge the  mortgage  debt."  These  states  are  Arkansas;  California, 
Code  Civ.  Proc,  §  564;  Idaho;  Kentucky;  Montana;  Nebraska,  Civ. 
Code,  §  266;  New  York;  North  Dakota;  Ohio;  South  Dakota,  Comp. 
Laws,  §  5015;  Washington;  Wyoming. 

138  Syracuse  City  Bank  v.  Tallman,  31  Barb.  201;  Hollenbeck  v. 
Donnell,  94  N.  Y.  342,  346.  "The  mortgagor  holds  the  estate  in 
some  respects  as  a  trustee  for  the  benefit  of  the  mortgagee": 
Schreiber  v.  Carey,  48  Wis.  208,  4  N.  W.  124. 

139  See  Pom.  Eq.  Jur.,  §  1188. 


169  EECEIVEBS  IN  MORTGAGE  FORECLOSUEE.  §  94 

mortgagor  to  possession  upon  default  and  until  sale 
•under  the  decree  of  foreclosure. ^^*^ 

Both  of  the  conditions  mentioned  must  co-exist/** 
and  be  alleged  and  satisfactorily  proved;  if  either  the 
inadequacy  of  the  security^^^  or  the  financial  irresponsi- 
bility^^^ of  the  person  liable  for  the  debt  is  not  shown, 
the  application  for  a  receiver  of  rents  and  profits  must 
be  denied. 

§  94.  Same;  Rule  not  Followed  in  Certain  States. — On 
the  other  hand,  the  courts  of  a  number  of  states  hold 
that  they  are  prohibited  by  their  statutes,  which  entitle 
the  mortgagor  to  the  possession  of  the  mortgaged  prop- 
erty until  sale  under  the  foreclosure  decree,  from  as- 
sisting the  mortgagee  to  obtain  indirectly,  through  the 
agency  of  a  receiver,  the  benefit  of  the  rents  and  profits 
incidental  to  ownership  and  possession.^^^     It  is  said, 

140  See  the  cases  above  from  Florida,  Indiana,  Nebraska,  Nevada, 
New  York,  Texas  and  Wisconsin;  especially  Schreiber  v.  Carey,  48 
Wis.  208,  4  N.  W.  124. 

141  Except  in  Indiana,  Nebraska  and  South  Dakota;  see  note  137, 
supra. 

142  Shotwell  V.  Smith,  3  Edw.  Ch.  (N.  Y.)  621;  Whitehead  v. 
Wooten,  43  Miss.  523;  Rogers  v.  Southern  Pine  Co.,  21  Tex.  Civ. 
App.  48,  51  S.  W.  26;  Lindsay  v.  American  Mortgage  Co.,  97  Ala. 
412,  11  South.  770.  In  the  last  case  it  was  said:  "It  is  clear  that 
when  lands  are  the  subject  of  a  mortgage  security  the  mortgagee 
is  not  entitled  to  a  receiver  unless  it  is  made  to  appear  that  the 
preservation  of  the  rents  and  profits  is  necessary  to  the  mortgagee  's 
security.  If  the  lands  are  of  sufficient  value  to  secure  the  debt,  the 
possession  of  the  mortgagee  should  not  be  disturbed  by  the  appoint- 
ment of  a  receiver.  It  is  incumbent  on  the  mortgagee  to  show  that 
such  necessity  exists."  But  that  the  appellate  court  is  reluctant 
to  disturb  a  finding  as  to  the  inadequacy  of  the  security,  see  Ponder 
V.  Tate,  96  Ind.  330. 

143  Myers  v.  Estell,  48  Miss.  372;  Warren  v.  Pitts,  114  Ala.  65, 
21  South.  494.  In  the  latter  case  the  property  had  been  sold  under 
a  judgment  against  the  mortgagor,  and  the  purchaser  was  in  posses- 
sion and  solvent. 

144  California.— Guy  v.  Ide,  6  Cal.  99,  65  Am.  Dec.  490;  but  the 
rule  is  now  changed;  see  note  to  last  section. 


{  94  EQUITABLE   EEMEDIES.  170 

however,  that  the  fact  that  the  premises  are  inadequate 
security,  or  that  the  mortgagor  is  insolvent,  or  both 
combined,  might  be  a  very  material  consideration  in 
passing  upon  the  propriety  or  necessity  of  appointing 

Iowa.— White  V.  Griggs,  54  Iowa,  650,  7  N.  W.  125;  American 
Invest.  Co.  v.  Farrar,  87  Iowa,  437,  54  N.  W.  361.  See,  also,  Callanan 
V.  Shaw,  19  Iowa,  183. 

Michigan.— Wagar  v.  Stone,  36  Mich.  364;  Beecher  v.  Marquette 
etc.  Co.,  40  Mich.  307;  Hazeltine  v.  Granger,  44  Mich.  503,  7  N.  W. 
74;  Fifth  Nat.  Bank  v.  Pierce,  117  Mich.  376,  75  N.  W.  1058;  Union 
Mut.  L.  Ins.  Co.  V.  Union  Mills  Plaster  Co.,  37  Fed.  286,  3  L.  K.  A. 
90  (Michigan  decisions  held  binding  on  the  federal  courts  sitting 
in  Michigan,  since  the  right  of  the  mortgagor  to  the  rents  and 
profits  is  a  substantial  right,  and  the  appointment  of  a  receiver  is 
not  a  mere  question  of  practice). 

Minnesota.— Marshal]  etc.  Bank  v.  Cady,  76  Minn.  112,  78  N.  W. 
978;  National  Fire  Ins.  Co.  v.  Broadbent,  77  Minn.  175,  79  N.  W.  676. 

South  Carolina. — Hardin  v,  Hardin,  34  S.  C.  77,  27  Am.  St.  Kep. 
786,  12  S.  E.  936. 

Washington.— Norf or  v.  Busby,  19  Wash.  450,  53  Pac.  715. 

In  Wagar  v.  Stone,  36  Mich.  367,  Marston,  J.,  said:  "Since  the 
passage  of  this  act,  which  prevents  the  mortgagee  from  obtaining 
possession  until  he  has  acquired  an  absolute  title  to  the  mortgaged 
premises,  the  mortgage  binds  only  the  lands.  The  rents  and  profits 
of  the  land  do  not  enter  into  or  form  any  part  of  the  security.  At 
the  time  of  giving  the  security  both  parties  understand  that  the 
mortgagor  will,  and  that  the  mortgagee  will  not,  be  entitled  to  the 
rents,  issues  or  profits  of  the  mortgaged  premises,  until  the  title  shall 
have  become  absolute  upon  a  foreclosure  of  the  mortgage.  Until 
the  happening  of  this  event,  the  mortgagor  has  a  clear  right  to  the 
possession  and  to  the  income  which  he  may  derive  therefrom,  and 
the  legislature,  by  the  passage  of  this  statute,  contemplated  that  he 
should  have  such  possession  and  income  to  aid  him  in  paying  the 
debt.  It  would  be  a  novel  doctrine  to  hold  that  the  mortgagee  had 
a  right  to  the  profits  incident  to  ownership,  and  yet  that  he  had 
neither  a  legal  title  or  right  to  possession.  The  legislature,  in  de- 
priving him  of  the  means  of  enforcing  possession,  intended  thereby 
also  to  cut  off  and  deprive  him  of  all  rights  which  he  could  have 
acquired  in  case  he  obtained  possession  before  acquiring  an  abso- 
lute title.  To  deprive  him  of  this  particular  remedy,  and  yet  allow 
him  in  some  other  proceeding  to,  in  effect,  arrive  at  the  same  result, 
would  be  but  a  meaningless  proceeding,  and  would  not  be  securing 
to  the  mortgagor  those  substantial  rights  which  it  was  the  evident 
intent  he  should  have.     We  do  not  overlook  the  fact  that  a  contrary 


171  KECEIVEES  IN   MORTGAGE  FORECLOSUEE.         §  95 

a  receiver  in  order  to  prevent  waste,  or  for  the  purpose 
of  preserving  the  premises.^ ^^ 

In  New  Jersey,  a  similar  result  is  reached  by  ad- 
herence to  the  former  English  doctrine,  that  the  legal 
mortgagee  must  appropriate  the  property  to  the  pay- 
ment of  his  debt  by  means  of  his  legal  remedy  of  eject- 
ment. Inadequacy  of  the  security  and  insolvency  of 
the  mortgagor  are  not  in  themselves  regarded  as  suf- 
ficient grounds  to  warrant  the  appointment  of  a  re- 
ceiver in  that  state.^*® 

§  95.  Other  Grounds. — The  mortgagee's  case  may  be 
strengthened  by  other  circumstances  in  addition  to  the 
essential  conditions  for  relief  above  mentioned.  Such 
circumstances  are,  the  mortgagor's  neglect  to  pay  taxes, 
or  to  comply  with  his  agreement  to  keep  the  premises 
insured  ;^^'^  and  where  such  neglect  is  shown,  the  court 
will  not  closely  scrutinize  conflicting  evidence  as  to  the 
value  of  the  mortgaged  property,  but  will  be  satisfied 
with  less  convincing  proof  than  usual  of  the  inadequacy 
of  the  security.^ ^^ 

doctrine  has  been  held  elsewhere  under  a  similar  statute.  We  can- 
not avoid  thinking,  however,  that  for  us  to  so  hold  would  be  a  mere 
evasion   of   our   statute." 

145  Marshall  etc.  Bank  v.  Cady,  76  Minn.  112,  78  N.  W.  978; 
National  Fire  Ins.  Co.  v.  Broadbent,  77  Minn.  175,  79  N.  W.  676. 

146  Cortleyou  v.  Hatheway,  11  N.  J.  Eq.  39,  64  Am,  Dec.  478; 
Best  V.  Schermier,  6  N.  J.  Eq.  154;  Frisbie  v.  Bateman,  24  N,  J. 
Eq.  28;  Horner  v.  Dey,  61  N.  J.  Eq.  554,  49  Atl.  154. 

147  Shepherd  v.  Pepper,  133  U.  S.  626,  10  Sup.  Ct.  438,  33  L.  ed. 
706;  American  Nat.  Bank  v.  Northwestern  Mut.  L.  Ins.  Co.  89  Fed. 
610,  32  C.  C.  A.  275;  Eslava  v.  Crampton,  61  Ala.  507;  Jackson  v. 
Hooper,  107  Ala.  634,  18  South.  254;  Harris  v.  United  States  etc. 
Inv.  Co.,  146  Ind.  265,  45  N.  E.  328;  Philadelphia  Mortgage  &  T. 
Co.  V.  Oyler,  61  Neb.  702,  85  N.  W.  899;  Finch  v,  Houghton,  19  Wis. 
150;  Schreiber  v.  Carey,  48  Wis.  208,  4  N.  W.  124;  Winkler  v. 
Magdeburg,   100  Wis.  421,   76  N.  W.  332. 

148  Eslava  v.  Crampton,  61  Ala.  507;  Jackson  v.  Hooper,  107 
Ala.  634,  18  South,  254;  Winkler  v.  Magdeburg,  100  Wis.  421  76  N. 
W.  332. 


S  ii6  EQUITABLE    EEMEDIES,  172 

Id  the  group  of  states  mentioned  in  the  last  sec- 
tion it  is  held  that  the  statutes  abrogating  the  com- 
mon-law theory  of  the  mortgage  have  not  abrogated  the 
power  to  afford  such  remedies  for  the  protection  of  the 
mortgagee's  equitable  rights  as  do  not  rest  upon  the 
doctrine  of  the  legal  title  or  right  of  possession  being  in 
the  mortgagee.^  ^* 

§  96.  General  Considerations  Governing  the  Appointment. 
A  court  should  not  appoint  a  receiver  in  a  foreclosure 
action  unless  the  facts  establish  a  case  which  clearly 
invokes  the  exercise  of  the  equitable  power  of  the  court 
to  grant  that  relief;  for  the  right  to  the  rents  and 
profits — in  those  states  at  least  which  have  discarded 
the  common-law  theory  of  the  mortgage — does  not  groAV 
directly  out  of  the  relation  of  the  parties  as  a  matter 
of  strict  right,  but  is  founded  upon  equitable  considera- 
tions which  address  themselves  to  the  sound  discretion 

of  the  court.^^® 

« 

149  Lowell  V.  Doe,  44  Minn.  144,  46  N.  W.  297;  Union  Mut.  Life 
Ins.  Co.  V.  Union  Mills  Plaster  Co.,  3.7  Fed.  286,  3  L.  E.  A.  90.  In 
the  former  case  the  grounds  for  the  appointment  were,  in  addition 
to  the  inadequacy  of  the  security  and  the  insolvency  of  the  mort- 
gagor, non-payment  of  taxes,  probable  cancellation  of  the  insurance, 
and  permanent  impairment  of  the  value  of  the  property  by  the  ces- 
sation of  its  use  for  hotel  purposes.  In  the  latter  case  it  was  held 
that  the  mere  disuse  of  a  manufacturing  plant  was  not  such  serious 
waste  as  to  justify  the  appointment  of  a  receiver.  In  South  Caro- 
lina, the  mere  non-payment  of  taxes  is  not  a  suflEicient  ground,  where 
it  is  not  alleged  that  the  security  is  inadequate,  and  where  the  stat- 
ute provides  that  the  mortgagee  may  pay  the  taxes  and  include  the 
amount  in  the  mortgage  debt:  Nathans  v.  Steinmeyer,  57  S.  C.  386, 
35  S.  E.  733. 

As  to  the  grounds  of  appointment  in  New  Jersey,  see  Cortleyou  v. 
Hatheway,  11  N.  J.  Eq.  39,  64  Am.  Dec.  478;  Mahon  v.  Crothers,  28 
N.  J.  Eq.  567;  Stockman  v.  Wallis,  30  N.  J.  Eq.  449;  Chetwood  v. 
Coffin,  30  N.  J.  Eq.  450;  Brasted  v.  Sutton,  30  N.  J.  Eq.  462. 

150  Sales  v.  Lusk,  60  Wis.  490,  19  N.  V\f.  362,  citing  Syracuse 
City  Bank  v.  Tallman,  31  Barb.  201,  208;  Rider  v.  Bagley,  84  N.  Y. 
461;  Schreiber  v.  Carey,  48  Wis.  208,  4  N.  W.  124. 


173  KEGEIVERS  IN  MORTGAGE  FORECLOSURE.  S  9/ 

In  an  often  cited  case  the  rule  is  laid  down  in  a  nega- 
tive form,  that  "a  receiver  in  mortgage  cases  will  never 
be  appointed  unless  it  is  clearly  shown  that  the  security 
is  inadequate,  or  that  the  rents  and  profits  have  been 
expressly  pledged  for  the  debt,  or  that  there  is  im- 
minent danger  of  waste,  removal,  or  destruction  of  the 
property.  There  must  be  some  strong  special  reason 
for  it."^^^  The  substance  of  this  rule  has  been  em- 
bodied in  the  statutes  of  many  of  the  states  in  a  posi- 
tive form.^^2 

Receivers  should  not  be  appointed  simply  because 
an  occasion  for  their  appointment  is  anticipated  or  may 
in  the  future  arise.  The  occasion  must  exist  when  the 
appointment  is  made.^^^  The  insufficiency  of  the  se- 
curity on  which  the  appointment  is  grounded  must  be 
an  insufficiency  existing  at  the  time  when  the  applica- 
tion is  made  or  acted  on,  not  merely  one  that  may  arise 
at  some  future  date.^^* 

§  97.  Effect  of  Stipulations  in  the  Mortgage. — That  a 
mortgage  contains  a  clause  mortgaging  the  rents  and 
profits  as  an  additional  security  for  the  debt  does  not 
require  the  court  to  appoint  a  receiver  in  an  action  to 
foreclose  the  mortgage.  Unless  the  land  is  inadequate 
security  the  appointment  of  a  receiver  is  an  unneces- 
sary annoyance  and  hardship.^  ^^  It  seems,  however, 
that  such  a  clause  may  cause  the  court  to  dispense  with 
proof  of  the  mortgagor's  insolvency. ^^"^  In  Iowa  a  dif- 
ference between  the  right  to  the  appointment  of  a  re- 
ceiver under  a  mortgage  which  pledges  rents  and  profits, 

151  MorriBon  v.  Buckner,  Hempst.  442,  Fed.  Gas.  No.  9844. 

152  See  ante,  §  93,  note  137. 

153  Chaldron  Banking  Co.  v.  Mahoney,  43  Neb.  214,  61  N.  W.  594. 

154  Laune  v.  Hauser,  58  Neb.  663,  79  N.  W.  555. 

155  Brick  ▼.  Honibeck,  19  Misc.  Eep.  (N.  Y.)  218,  43  N.  Y.  Supp. 
301. 

156  Butler  V.  Frazer  (Sup.  Ct.),  57  N.  Y.  Supp.  900. 


§  97  EQUITABLE    REMEDIES.  174 

and  under  one  that  does  not,  is  recognized,  and  the  ap- 
pointment of  a  receiver  in  the  former  case,  on  proof  of 
the  mortgagor's  insolvency  and  the  inadequacy  of  the 
security,  is  said  to  be  a  matter  of  course  ;^^'^  but  in  a 
later  case,  where  the  mortgage  gave  the  mortgagee  the 
right  of  possession  in  case  of  default  on  the  part  of  the 
mortgagor,  and  pledged  the  rents  and  profits,  such 
pledge  was  construed  to  take  effect  only  in  case  posses- 
sion should  be  taken  by  the  mortgagee,  and  the  appoint- 
ment of  a  receiver  was  held  to  be  unauthorized.^^* 

Stipulations  in  the  mortgage  providing  that  the  mort- 
gagee may  have  a  receiver  of  rents  and  profits  on  de- 
fault by  the  mortgagor  have  been  frequently  considered 
by  the  inferior  courts  of  New  York.  It  is  there  held 
that  such  a  stipulation  gives  the  mortgagee  no  absolute 
right  to  the  appointment  of  a  receiver,  and  will  not  be 
enforced  when,  under  all  the  circumstances,  it  is  in- 
equitable to  take  the  property  out  of  the  owner's  hands 
pending  the  action  of  foreclosure;  but,  at  the  same 
time,  such  a  clause  is  entitled  to  weight,  and  is  to  be 
considered,  among  other  features  of  the  case,  in  deter- 
mining the  propriety  of  making  such  appointment.^  ^^ 
It  will  not  be  enforced  when  the  security  is  ample.^^** 

157  Des  Moines  Gas  Co.  v.  West,  44  Iowa,  25. 

158  Swan  V.  Mitchell,  82  Iowa,  307,  47  N.  W.  1042,  explained  in 
American  Investment   Co.  v.  Farrar,  87   Iowa,  437,  54  N.  W.   361. 

159  C.  B.  Keogh  Mfg.  Co.  v.  Whiston,  14  N.  Y.  Supp.  344  (ap- 
proved in  Bagley  v.  Illinois  Trust  &  Sav.  Bank,  199  111.  76,  64  N.  E. 
1085);  Eidlitz  v.  Lancaster,  40  App.  Div.  446,  59  N.  Y.  Supp.  54; 
Fletcher  v.  Krupp,  35  App.  Div.  586,  55  N.  Y.  Supp.  146. 

160  Degener  v.  Stiles,  53  Hun,  637,  6  N.  Y.  Supp.  474;  and  see 
Jarvis  v.  McQuaide,  24  Misc.  Rep.  17,  53  N.  Y.  Supp.  97;  United 
States  Life  Ins.  Co.  v.  Ettiuger,  32  Misc.  Rep.  378,  66  N.  Y.  Supp.  1. 
Where  the  plaintiff's  affidavit  showed  that  default  had  been  made 
in  the  payment  of  insurance,  taxes,  and  interest,  and  stated  that 
he  did  not  believe  that  the  premises  afforded  adequate  security,  the 
stipulation  for  the  appointment  of  a  receiver  was  properly  enforced: 
Fletcher  v.  Krupp,  35  App.  Div.  586,  55  N.  Y.  Supp.  146. 


175  RECEIVERS  IN  MORTGAGE  FORECLOSURE.  S  97 

In  Iowa,  it  is  held  that  the  stipulation  is  a  controlling 
fact  in  the  case,  and  will  be  enforced  as  the  parties  in- 
tended, even  when  there  is  no  showing  of  the  insol- 
vency of  the  party  personally  liable  for  the  mortgage 
debt,  and  the  inadequacy  of  the  security  is  in  dispute  ;^^^ 
but  the  mortgagee  is  not  entitled  to  a  receiver  on  an 
application  made  at  the  time  of  taking  judgment,  if  the 
agreement  therefor  contemplated  such  appointment  at 
the  commencement  of  the  action.^^^  In  Illinois,  too,  a 
pledge  of  the  rents  and  profits,  and  a  stipulation  for  a 
receiver  to  collect  and  apply  them  to  the  payment  of 
the  debt  and  costs,  authorizes  the  appointment  of  a  re- 
ceiver, w  ithout  regard  to  the  solvency  of  the  mortgagor ; 
the  authority  arises  from  the  contract,  the  express 
words  giving  a  lien  on  the  rents  and  profits.^ ^^ 

In  California,  on  the  other  hand,  it  is  held  that  where 
a  court  has  no  authority  under  the  law  to  appoint  a 
receiver,  such  authority  cannot  be  conferred  by  consent 
or  stipulation  of  the  parties;  in  such  case  consent  of 
parties  cannot  confer  jurisdiction  upon  a  court,  or  im- 
pose upon  it  the  duty  of  taking  care  of  and  disposing 

161  "We  think  it  is  not  to  be  seriously  questioned  that  the  court 
could,  by  a  stipulation  of  the  parties,  place  the  property  in  the 
hands  of  a  receiver,  to  be  held  under  its  direction.  And  it  seems  to 
us  equally  clear  that  the  parties  could,  by  contract,  when  the  prop- 
erty was  pledged  on  cecurity,  settle  the  conditions  on  which  it  should 
be  preserved  and  applied.  The  parties,  in  making  the  contract,  seem 
to  have  been  in  such  doubt,  as  to  the  sufficiency  of  the  property  as 
security,  as  to  provide  that  if  proceedings  to  foreclose  should  be 
commenced,  a  receiver  should  take  the  rents  and  profits,  and  apply 
them,  and  otherwise  preserve  the  property,  under  the  direction  of 
the  court.  We  see  nothing  in  such  a  contract  that  is  unconscionable 
or  against  public  policy;  nor  do  we  see  why  it  should  not  be  enforced 
as  the  parties  intended":  Hubbell  v.  Avenue  Investment  Co.,  97 
Iowa,  135,  66  N.  W.  85. 

162  Paine  v.  McElroy,  73  Iowa,  81,  34  N.  W.  615, 

163  First  Nat.  Bank  v.  Illinois  Steel  Co.,  174  111.  140,  51  N.  E. 
200j  Bagley  v.  Illinois  Trust  &  Sav.  Bank,  199  111.  76,  64  N,  E.  1085. 


S  &8  EQUITABLE   EEMEDIES.  176 

of  the  property.^ ^^  In  Michigan,  also,  and  in  Oregon, 
such  stipulations  are  held  to  be  contrary  to  the  public 
policy  of  those  states  as  expressed  in  the  statutes  which 
secure  a  mortgagor  in  his  possession  until  a  foreclosure 
has  become  absolute.^ ^^ 

§  98.  Time  of  the  Appointment. — ^A  receiver  will  not 
generally  be  appointed  when  the  mortgage  debt  is  not 
yet  due.^*^^  "SA'hen  the  mortgage  debt  is  only  partly 
due,  and  the  usual  grounds  for  the  appointment  of  a 
receiver  on  foreclosure  proceedings  exist,  a  receiver  of 
the  whole  premises  may  be  appointed,  provided  that 
the  premises  are  indivisible,  or  so  circumstanced  that 
they  must  inevitably  be  sold  in  one  parcel  ;^^^  but  where 
the  mortgaged  premises  are  divided  into  two  parcels 
nearly  equal,  which  can  be  sold  separately  without  in- 
jury to  the  parties  interested,  and  there  is  no  pledge 
or  specific  lien  by  which  the  accruing  rents  of  that  por- 
tion of  the  premises  not  yet  liable  to  be  sold  are  con- 
stituted a  security  to  the  mortgagee  for  that  portion 

164  "It  might  as  well  be  said  that  in  a  suit  upon  a  promissory 
note,  or  upon  any  simple  contract  for  the  payment  of  money,  a 
stipulation  in  the  instrument  by  which  the  debt  was  evidenced  that 
the  court  might  appoint  a  receiver  upon  suit  brought  would  give 
jurisdiction  to  the  court  to  appoint  such  receiver;  or  that  there 
could  be  a  specific  performance  of  a  contract  in  any  kind  of  a  case 
because  the  parties  had  stipulated  for  a  decree  of  specific  perform- 
ance": Baker  t.  Varney,  129  Cal.  564,  79  Am.  St.  Eep.  140,  62  Pac. 
100.  The  order  appointing  the  receiver  in  this  case,  based  solely 
vipon  the  stipulation  of  the  parties  in  the  mortgage,  was  held  to  be 
void  and  subject  to  collateral  attack.  See,  also,  Scott  v.  Hotchkiss, 
115  Cal.  94,  47  Pac.  45. 

165  Hazeltine  v.  Granger,  44  Mich,  503,  7  N.  W.  74;  Couper  v. 
Shirley,  75  Fed.  168,  21  C.  C  A.  288,  aflarming  s.  c,  sui  nom.  Thomp- 
son V,  Shirley,  69  Fed.  484. 

166  Bank  of  Ogdensburgh  v.  Arnold,  5  Paige,  38;  Mayfield  v. 
Wright  (Ky.),  54  S.  W.  864. 

167  Quincy  v.  Cheeseman,  4  Sandf.  Ch.  (N.  Y.)  405;  Hollenbeck  v. 
Donnell,  94  N.  Y.  342;  Buchanan  v.  Berkshire  etc.  Ins,  Co.,  96  Ind. 
610,  527  et  seq. 


17T  RECEIVERS  IN  MORTGAGE  FORECLOSURE.  S  98 

of  the  mortgage  not  due,  the  latter  is  not  entitled  to  a 
receivership  for  the  protection  of  the  unmatured  por- 
tion of  the  debt,  or  of  that  portion  of  the  premises  as  to 
which  his  right  to  sell  has  not  yet  accrued,  but  only  as 
to  one  of  the  parcels.^ ^^ 

The  question  of  the  appointment  of  a  receiver  after 
the  decree  of  foreclosure,  or  after  the  sale  under  the 
decree  and  during  the  statutory  period  of  redemption, 
has  arisen  in  a  number  of  the  states,  and  has  received 
very  diverse  answers.  It  may  be  stated  as  a  general 
rule,  that  a  receiver  may  be  appointed,  after  judgment 
and  before  sale,  especially  when  the  sale  is  delayed  for 
some  considerable  length  of  time  thereafter  ;^^^  and  the 
denial  of  a  receiver  in  foreclosure  before  judgment  is 

168  Hollenbeck  v.  Donnell,  94  N.  Y.  342. 

169  Schreiber  v.  Carey,  48  Wis.  208,  219,  4  N.  W.  124,  citing  Bank 
V.  Tallman,  31  Barb.  201;  Smith  v.  Tiffany,  13  Hun,  671;  Astor  v. 
Turner,  11  Paige,  436,  43  Am.  Dec.  766;  Hackett  v.  Snow,  10  Irish 
Eq.  220;  Cooke  v.  Gwyn,  3  Atk.  690;  Thomas  v.  Davies,  11  Beav. 
29.  See,  also,  Brinkman  v.  Ritzinger,  82  Ind.  358.  In  the  first 
ease  the  court  say:  "We  think  there  would  be  great  propriety  in 
many  cases  in  delating  the  appointment  until  after  the  rights  of  the 
parties  are  fixed  by  the  judgment,  and  especially  so  where  there  is  a 
dispute  as  to  the  amount  actually  due  upon  the  mortgage,  or  where 
there  is  a  question  as  to  what  real  estate  the  mortgage  covers.  In 
cases  of  this  kind  great  injustice  might  be  done  by  the  appoint- 
ment of  a  receiver  before  judgment,  whereas  after  judgment,  when 
the  amount  of  the  mortgage  claim  is  fixed,  and  the  property  subjected 
to  the  payment  of  the  same  ascertained,  the  court  is  in  a  much  more 
advantageous  position  for  determining  whether  equity  requires  the 
appointment  of  a  receiver  or  not."  The  plaintiff's  laches  may  in- 
fluence the  court  to  deny  his  application:  Cone  v.  Combs,  18  Fed. 
576,  5  McCrary,  651.  When  the  right  to  a  receiver  depended  on  a 
stipulation  for  appointment  on  commencement  of  foreclosure,  the 
mortgagee  is  not  entitled  to  a  receiver  at  the  time  of  taking  judg- 
ment: Paine  v.  McElroy,  73  Iowa,  81,  34  N.  W.  615.  In  England, 
the  mortgagee  cannot  have  a  receiver  after  a  judgment  for  fore- 
closure absolute,  the  action  being  at  an  end;  "the  plaintiff  is,  in 
fact,  asking  for  a  receiver  order  against  himself,  in  respect  of  the 
interest  which  is  all  vested  in  him":  Wills  v.  Luff,  L.  R.  38  Ch.  D. 
197, 

Equitable  Remedies,  Vol.  1—12 


§  98  EQUITABLE  EEMEDIES.  178 

not  a  bar  to  an  application  for  a  receiver  after  judg- 
ment.^''® In  Nebraska,  however,  it  is  held  that  a  re- 
ceiver is  unnecessary,  unless  an  appeal  is  taken,  as  the 
mortgagee  may  proceed  to  sell  the  property  in  twenty 
days  after  the  final  decree  in  foreclosure.^'^^ 

In  several  states  the  owner  of  the  equity  of  redemp- 
tion has  a  right  to  the  possession  of  the  premises  until 
the  expiration  of  a  specified  time — usually  a  year — 
from  the  date  of  the  foreclosure  sale.  It  is  held  in 
Iowa  and  in  California  that  this  right  to  the  possession 
forbids  the  appointment  of  a  receiver  on  the  applica- 
tion of  the  mortgagee  who  has  purchased  the  premises 
at  the  foreclosure  sale.^'^^  In  Illinois  and  Indiana,  on 
the  other  hand,  the  question  of  appointment  after  sale 
appears  to  be  governed  by  much  the  same  considera- 
tions as  if  the  application  were  made  at  the  commence- 
ment of  the  suit.  If  the  property  is  bid  in  at  the  sale 
for  the  full  amount  of  the  debt,  interest  and  costs,  there 
is  no  occasion  for  the  appointment  or  continuance  of  a 

170  Nash  V.  Meggett,  89  Wis.  486,  61  N.  W.  283. 

171  Chadron  Banking  Co.  v.  Mahoney,  43  Neb.  214,  61  N.  W.  594. 
That  a  receiver  is  proper  after  the  taking  of  an  appeal,  see  East- 
man V.  Cain,  45  Neb.  48,  63  N.  W.  127;  Philadelphia  Mortgage  etc. 
Co.  V.  Goos,  47  Neb.  804,  66  N.  W.  843. 

172  White -v.  Griggs,  54  Iowa,  650,  7  N.  W.  125;  West  v.  Conant, 
100  Cal.  231,  34  Pac.  705.  In  the  latter  case  it  is  held  that  a  stat- 
ute which  entitles  the  purchaser  to  receive  from  the  tenant  in  pos- 
session the  rents  of  the  property  sold  on  execution,  or  the  value  of 
the  use  and  occupation,  during  the  period  for  redemption,  does  not 
vrarrant  the  appointment  of  a  receiver  to  oust  the  judgment  debtor. 
Compare  the  case  of  Hill  v.  Taylor,  22  Cal.  191,  where  a  receiver 
was  appointed  on  behalf  of  the  purchaser  on  foreclosure  of  the  mort- 
gagor's part  interest  in  a  gold  mine,  the  mortgagor  being  insol- 
vent, working  the  mine  and  refusing  to  pay  the  purchaser  his  share 
of  the  dividends,  with  a  likelihood  that  the  mine  would  be  exhausted 
before  the  expiration  of  the  redemption  period.  In  Iowa,  a  stipula- 
tion in  the  mortgage  for  the  appointment  of  a  receiver  during  the 
period  for  redemption  is  controlling  upon  the  court:  Hubbell  v. 
Avenue  Inv.  Co.,  97  Iowa,  135,  66  N.  W.  85. 


179  EECEIVEES    IN    MORTGAGE    FORECLOSURE.  |  98 

receiver.' '^^  In  Illinois,  where  there  is  a  deficiency  de- 
cree, the  appointment  is  made  on  the  same  grounds  as 
before  the  decree — viz.,  the  insuflSciency  of  the  security 
and  the  insolvency  of  the  mortgagor,^'^^  or  a  stipulation 
in  the  mortgage  for  such  appointment  during  the  period 
of  redemption.' '^°  In  Indiana,  similarly,  it  is  held  that 
the  redemption  statute  postpones  the  time  for  the  end- 
ing of  the  equity  of  redemption,  and  gives  a  year's  ad- 
ditional existence  to  the  mortgage  lien;  and,  notwith- 
standing that  the  redemption  statute  is  silent  as  to  the 
judgment  debtor's  liability  for  the  rents  and  profits  dur- 
ing the  year  of  his  occupancy,  the  mortgage  creditor, 
who  has  purchased  at  the  foreclosure  sale,  may,  in  case 
of  the  inadequacy  of  the  security  and  the  insolvency 

173  Bogardus  v.  Moses,  181  111.  554,  54  N.  E.  984;  Davis  v.  Dale, 
150  111.  239,  37  N.  E.  215;  World  Bldg,  etc.  Co.  v.  Marlin,  151  Ind. 
630,  52  N.  E.  198;  except  where  be  is  appointed  or  continued  for 
the  benefit  of  a  second  mortgagee,  who  is  a  party  to  the  suit,  the 
amount  of  the  bid  being  insufficient  to  satisfy  both  mortgages: 
Eoach  V.  Glos,  181  lU.  440,  54  N.  E.  1022. 

174  First  Nat.  Bank  v.  Illinois  Steel  Co.,  174  111.  140,  51  N.  E. 
200;  Roach  v.  Glos,  181  111.  440,  54  N.  E.  1022;  Christie  v.  Burns, 
83  111.  App.  514;  Haas  v.  Chicago  Building  Society,  89  111.  498,  506. 
In  the  last  case  it  was  said:  "The  necessity  for  the  appropriation 
of  the  rents  to  the  payment  of  the  mortgage  debt  may  frequently 
not  appear  until  after  both,  decree  and  sale.  The  amount  due  is 
often  matter  of  dispute,  and  can  only  be  determined  by  the  decree, 
and  what  the  property  will  sell  for  can  only  be  ascertained  with 
certainty  from  the  result  of  the  judicial  sale.  If  an  appropriation 
of  the  rents  on  the  indebtedness  is  justified  by  the  surrounding 
facts  before  sale,  we  see  no  good  reason  why  the  same  and  more 
weighty  facts  existing  after  sale  may  not  warrant  a  similar  pro- 
cedure. Tlie  security,  plainly,  is  not  exhausted  by  the  sale,  for  there 
is  a  fund  included  in  it  which  is  secondarily  liable.  It  is  true,  the 
mortgagee  has  elected  to  foreclose  and  sell;  but  then  he  has  pur- 
sued that  remedy  to  the  end,  and  without  getting  satisfaction  of  his 
debt,  and  he  may  avail  himself  of  any  just  and  equitable  means  of 
collecting  the  residue." 

175  First  Nat.  Bank  v.  Illinois  Steel  Co.,  174  111.  140,  51  N.  E.  200; 
Oak'^ord  V.  Robinson,  48  111.  App.  270. 


I  99  EQUITABLE  EEMEDIES.  180 

of  the  debtor,  have  a  receiver  to  collect  and  hold  the 
rents  and  profits,  during  the  year  allowed  for  redemp- 
tion, of  such  parts  of  the  land  as  are  in  the  possession  of 
the  mortgagor's  tenants.^''^® 

§  99.  Effect  of  Assignment  of  the  Mortgaged  Premises;  of 
Administration  Thereof;  and  of  Homestead  Right  Therein. — 
It  has  been  held  that  if  the  mortgagee  is  entitled  to  a 
receiver,  his  right  thereto  is  not  affected  by  the  fact 
that  the  mortgagor  has  made  an  assignment  of  the  prop- 
erty for  the  benefit  of  creditors. ^"^^ 

It  has  been  held  that  the  administrator  of  a  deceased 
mortgagor  is  entitled  to  no  exception  in  his  favor  ;^'^* 
but  in  Missouri,  where  an  administrator  has  taken  pos- 
session of  the  intestate's  land  under  an  order  of  the 
probate  court,  and  his  bond  secures  the  faithful  applica- 
tion of  the  rents,  the  necessity  for  the  appointment  of 
a  receiver  does  not  exist,  since  the  property  is  already 
in  custodia  legis.^"^^ 

Whether  a  homestead  may  ever  be  placed  in  the  pos- 
session of  a  receiver  at  the  commencement  of  a  suit  to 
foreclose  a  mortgage  thereon  is  also  a  question  on  which 

176  Merritt  v.  Gibson,  129  Ind.  155,  27  N,  E.  136,  15  L.  E.  A.  277, 
examining  Connelly  v.  Dickson,  76  Ind.  444;  Travelers'  Ins.  Co. 
T.  Brouse,  83  Ind.  62;  Sheeks  v.  Klotz,  84  Ind.  471,  and  other  In- 
diana cases  decided  under  previous  statutes.  The  principal  case 
contains  an  interesting  and  very  able  discussion  of  the  distinction 
between  an  execution  sale,  and  a  sale  based  on  a  decree  foreclosing 
a  mortgage,  of  the  purpose  of  the  redemption  statutes,  and  of  their 
effect  upon  the  right  to  a  receiver. 

177  Sweet  &  Clark  Co.  v.  Union  Nat.  Bank,  149  Ind.  305,  49  N.  E. 
159;  Bristow  v.  Home  Bldg.  Co.,  91  Va.  18,  20  S.  E.  947;  and  see 
Post  V.  Dorr,  4  Edw.  Ch.  412.  Contra,  Seignious  v.  Pate,  32  S.  C. 
134,  17  Am.  St.  Eep.  846,  10  S.  E.  880;  but  the  grounds  alleged  for 
the  appointment  in  the  last  case  were  soon  after  declared  by  the 
same  court  to  be  insufficient:  Hardin  v.  Hardin,  34  S.  C.  77,  27  Ana. 
St.  Eep.  794,  12  S.  E.  936. 

178  Jacobs  V.  Gibson,  9  Neb.  380,  2  N.  W.  893. 

1T»  St.  Louis  Nat.  Bank  v.  Field,  156  Mo.  306,  56  S.  W.  1095. 


181  EECEIVERS    IN    MORTGAGE    FORECLOSURE.         S  100 

the  courts  are  at  variance.  The  question  has  received 
a  negative  answer  in  Nebraska ;^^'^  while  in  Minnesota, 
although  in  such  a  case  the  court  should  ordinarily  re- 
quire a  somewhat  stronger  showing,  yet,  when  the 
debtor  mortgages  his  homestead  it  is  held  that  he  sub- 
jects the  property  to  all  the  legal  and  ecjuitable  rights 
of  a  mortgagee,  among  which  is  the  right  to  have  a  re- 
ceiver appointed  when  necessary  to  prevent  waste  or 
preserve  the  property.^  ^^ 

§  100.  To  What  the  Receiver's  Title  Extends. — The  re- 
ceiver's title  to  the  rents  extends  to  those,  and  those 
only,  which  accrue  after  his  appointment,  or  such  as 
have  theretofore  accrued  but  have  not  yet  come  to  the 
liands  of  the  owner  of  the  equity  of  redemption  or  his 
assignee.^ ^2     He  has  no  title  to  crops  sold  on  execution 

180  "We  cannot  read  into  the  law  the  incidental  remedies  which 
accompany  mortgage  liens  ordinarily  or  in  general.  Any  invasion 
of  the  homestead  right  will  not  be  extended  beyond  the  fair,  direct 
import  of  the  enactment  by  which  it  may  be  sought  to  make  it  less 
absolute":  Chadron  L.  &  B.  Assn.  v.  Smith,  58  Neb.  469,  78  N.  W. 
938;  Laune  v.  Hauser,  58  Neb.  663,  79  N.  W.  555.  See,  also,  Hoge 
V.  Hollister,  8  Baxt.  (Tenn.)  533;  Nash  v.  Meggett,  89  Wis.  486,  61 
N.  W.  283  (an  order  excepting  the  homestead  is  proper).  It  has 
been  held  in  Nebraska,  however,  that  where  the  homestead  right 
does  not  extend  to  the  whole  property,  and  there  is  no  difficulty  in 
separating  it,  a  receiver  may  be  appointed  to  take  charge  of  the 
excess:   Sanford  v.  Anderson  (Neb.),  95  N.  W.  632. 

181  Marshall  etc.  Bank  v.  Cad.y,  75  Minn.  241,  77  N.  W.  831; 
Lowell  v.  Doe,  44  Minn.  144,  46  N.  W.  297. 

182  Lofsky  v.  Manjer,  3  Saiulf.  Ch.  (N.  Y.)  69;  Rider  v.  Bagley, 
84  N.  Y.  461;  Wyckoff  v.  Scofield,  98  N.  Y.  475;  Lawrence  v.  Conlon, 
26  Misc.  Rep.  44,  56  N.  Y.  Supp.  345;  Alabama  Nat.  Bank  v.  Mary 
Lee  Coal  etc.  Co.,  108  Ala.  288,  19  South.  404;  but  see  Bank  of 
Woodland  v.  Heron,  120  Cal.  614,  54  Pac.  1006.  The  mortgagor  can- 
not evade  the  rule  by  leasing  the  premises  pendente  lite  for  one  or 
more  years,  and  taking  payment  of  the  rent  in  advance;  the  lessee, 
in  such  case,  must  either  surrender  or  attorn  to  the  receiver,  or  par 
him  a  reasonable  rent  for  the  use  of  the  premises  from  the  date  of 
the  appointment:  Gaj^nor  v.  Blewett,  82  Wis.  313,  33  Am.  St.  Rep. 
47,  52  N.  W.  313.  His  lien  on  the  rents  is  superior  to  the  rights  of 
the   mortgagor's   assignee   in  bankruptcy:  Post   v.   Dorr,   4   Edw.    Ch. 


§  101  EQUITABLE     REMEDIES.  182 

against  the  mortgagor  before  his  appointment.*^'  In 
California  it  is  held  that  he  cannot  be  directed  before 
the  decree  of  foreclosure  to  take  possession  of  the  crops 
of  the  mortgagor  upon  which  the  mortgagee  has  no  lien 
previous  to  the  appointment.^  ^^ 

In  an  action  to  foreclose  a  mortgage  which  covers 
only  the  interests  of  a  lessee,  it  is  not  competent  for  the 
court  to  appoint  a  receiver  who  should  represent  not 
only  that  interest,  but  also  that  of  the  lessor.* ^^ 

§  101.  Receiver  on  Application  of  Junior  Mortgagee. — 
Where  a  prior  mortgagee  is  in  possession  of  the  mort- 
gaged premises,  the  court  will  not,  upon  the  applica- 
tion of  a  subsequent  mortgagee,  appoint  a  receiver,  to 
the  prejudice  of  such  prior  mortgagee,  while  anything 
remains  due  on  his  mortgage ;*^^  but  to  justify  the 
court's  refusal  on  the  ground  of  the  prior  mortgagee's 
possession  it  must  clearly  appear  that  his  mortgage  has 
not  been  fully  paid.*®'''  In  case  the  prior  mortgagee  has 
not  taken  possession,  it  is  well  settled  that,  on  a  proper 
showing,  the  court  may  appoint  a  receiver  on  behalf  of 
a  junior  mortgagee,  without  the  consent  of  the  prior  en- 
cumbrancer.*®* 

(N.  Y.)  412.  The  propriety  of  the  appointment  of  the  receiver  can- 
not be  questioned,  in  an  action  by  him  to  recover  rents,  by  one  who 
was  a  party  to  the  suit  in  which  the  receiver  was  appointed:  Good- 
hue V.  Daniels,  54  Iowa,  19,  6  N.  W.  129. 

183  Favorite  v.  Deardoff,  84  Ind.  555. 

184  Locke  V.  Klunker,  123  Cal.  231,  55  Pae.  993;  Bank  of  Wood- 
land V.  Heron,  120  Cal.  614,  52  Pac.  1006;  Simpson  v.  Ferguson,  112 
Cal.  180,  53  Am.  St.  Eep.  201,  40  Pac.  104,  44  Pac.  484. 

185  Woodward  v.  Winehill,  14  Wash.  394,  44  Pac.  860. 

186  See  27  Am.  St.  Rep.  798;  Berney  v.  Sewell,  1  Jacob  &  W.  647,  per 
Lord  Eldon;  Rowe  v.  Wood,  2  Jacob  &  W.  553;  Codrington  v.  Parker,  16 
Ves.  469;  Hiles  v.  Moore,  15  Beav.  175;  Trenton  Banking  Co.  v.  Wood- 
ruff, 3  N.  J.  Eq.  210. 

187  Codrington  v.  Parker,  16  Ves.  469;  Hiles  v.  Moore,  15  Beav.  175. 

188  Bryan  v.  Cormick,  1  Cox,  422;  Dalmer  v.  Dashwood,  2  Cox,  378; 
and  cases  in  the  following  notes. 


183  EECEIVEKS    IN    MORTGAGE    FOEECLOSUEE.         §  102 

The  usual  grounds  for  the  appointment  are,  the  in- 
solvency of  the  person  liable  for  the  debt,  and  the  in- 
sufficiency of  the  property  to  secure  the  plaintiff's 
mortgage  and  those  prior  to  it;^^^  or  in  jurisdictions 
where  these  are  not  recognized  as  sufficient  grounds, 
the  additional  fact  that  the  owner,  who  is  in  possession, 
refuses  to  keep  down  the  interest  on  the  first  mort- 
gage ;^'>'*  or,  in  New  Jersey,  the  facts  that  the  buildings 
upon  the  mortgaged  premises  have  been  burned  down, 
and  the  property  generally  has  been  permitted  to  go  to 
waste,  through  the  fault  of  the  person  in  possession, 
or  that  fraud  or  bad  faith  is  shown  by  the  misappro- 
priation of  the  rents  and  proflts.^^^ 

§  102.  Same;  Right  to  Rents  as  Between  Prior  and  Junior 
Mortgagees — It  is  an  established  rule  that  a  junior 
mortgagee,    who    succeeds    iu    getting    a    receiver    ap- 

189  Roach  V.  Glos,  181  111.  440,  54  N.  E.  1022;  Buchanan  v.  Berk- 
shire etc.  Ins,  Co.,  96  Ind.  510;  Pearson  v.  Kendrick,  74  Miss.  235,  21 
South.  37  (the  application  of  a  junior  encumbrancer  said  to  stand  upon 
much  more  favorable  grounds  than  that  of  first  mortgagee) ;  Eckluad 
V.  Willis,  42  Neb.  737,  60  N.  W.  1026;  Browning  v.  Stacey,  52  App. 
Div.  626,  65  N.  Y.  Supp.  203;  Fletcher  v.  Krupp,  35  App.  Div.  586, 
55  N.  Y.  Supp.  146.  In  the  first  case  cited,  a  receiver  appointed  at 
the  instance  of  a  first  mortgagee,  after  a  sale  which  realized  only 
enough  to  satisfy  the  first  mortgage,  was  continued  for  the  collection 
of  rents  and  profits  during  the  year  of  redemption,  for  the  benefit 
of  the  second  mortgagee,  and  against  a  purchaser  of  the  equity  of 
redemption. 

190  Haugan  v.  Netland,  51  Minn.  552,  53  N.  W.  873;  cf.  Myton  v. 
Davenport,  51  Iowa,  583,  2  N.  W.  462.  In  Wisconsin,  it  was  held,  in 
Sales  V.  Lusk,  60  Wis.  490,  19  N.  W.  362,  where  the  security  had  not 
decreased  since  the  mortgage  was  given,  and  there  was  no  evidence 
that  the  property  was  being  mismanaged  by  the  mortgagor's  assignees 
in  possession,  that  although  the  mortgagors  were  non-resident  and  in- 
solvent, a  receiver  should  not  have  been  appointed  upon  the  applica- 
tion of  a  plaintiff  who  sought  thereby  to  intercept  the  rents  and  profits 
and  divert  them  to  his  own  use  to  the  prejudice  of  the  prior  mort- 
gagees. 

191  Cortelyou  v.  Hatheway,  11  N.  J.  Eq.  39,  64  Am.  Dec.  478. 


§  102  EQUITABLE     REMEDIES.  134 

pointc'd,  becomes  thereby  entitled,  as  agaiust  a  prior 
mortgagee,  to  the  rents  collected  during  the  appoint- 
ment, until  such  prior  mortgagee  obtains  the  appoint- 
ment of  a  receiver,  or  the  extension  of  the  existing  re- 
ceivership, for  his  own  benefit.  This  is  on  the  principle 
that  a  mortgagee  acquires  a  specific  lien  upon  the  rents 
by  obtaining  the  appointment  of  a  receiver  of  them, 
and  if  he  be  a  second  or  third  encumbrancer,  the  court 
will  give  him  the  benefit  of  his  superior  diligence  over 
his  senior  in  respect  to  the  rents  which  accrued  during 
the  time  that  the  elder  mortgagee  took  no  measures  to 
have  the  receivership  extended  to  his  suit  and  for  his 
benefit.^ ^2  But  this  exclusive  right  of  a  junior  mort- 
gagee to  the  income  of  a  receivership  created  upon  his 
application  is  limited  to  the  cases  in  which  either  (1) 
the  senior  mortgagee  was  not  a  party  to  the  action,  or, 
(2)  the  senior  mortgagee  being  a  party,  the  receiver 
was  appointed  for  the  benefit  of  the  junior  mortgagee 
and  the  receivership  was  not  extended  to  the  other 
liens.  If  (3)  the  senior  mortgagee  was  a  party  to  the 
action,  and  the  appointment  was  general  in  its  nature, 

192  Howell  V.  Eipley,  10  Paige,  43;  Post  v.  Dorr,  4  Edw.  Ch.  412; 
Eanney  v.  Peyser,  83  N.  Y.  1;  Washington  Life  Ins.  Co.  v.  Fleischauer, 
10  Hun,  117;  Sanders  v.  Lord  Lisle,  4  Irish  Eq.  43;  Bank  v.  Barry, 
3  Irish  Eq.  443;  Lanauze  v.  Eailway  Co.,  3  Irish  Eq.  454;  Nesbit  v. 
Wood,  22  Ky.  Law  Eep.  127,  56  S.  W.  714.  The  prior  mortgagee  may 
either  have  an  additional  receiver  appointed  for  his  own  benefit,  thus 
displacing  the  rights  of  the  receiver  previously  appointed  to  the  fur- 
ther receipt  of  rents:  Holland  Trust  Co.  v.  Con.  Gas.  etc.  Co.,  85  Hun, 
455,  32  N.  Y.  Supp.  830;  Hennessy  v.  Sweeney,  57  N.  Y.  Supp.  901; 
or  the  existing  receivership  may  be  extended,  on  the  application  of 
the  prior  mortgagee:  Putnam  v.  McAllister  (Sup.  Ct.),  57  N.  Y.  Supp. 
404;  Anderson  v.  Matthews,  8  Wyo,  513,  58  Pac.  898. 

In  Virginia,  the  general  rule  is  not  followed,  but  the  receiver  is  re- 
garded as  appointed  in  behalf  of  all  the  parties,  and  must  account 
according  to  the  priorities  of  the  different  encumbrances:  Beverley 
V.  Brooke,  4  Gratt.  187. 


185  KECEIVEKS    IN    MORTGAGE    EOPtECLOSlRE.         §   103 

the  respective  rights  to  the  rents  are  controlled  bv  tlie 
priority  of  the  liens.^^^ 

§  103.  Receivers  in  Behalf  of  Others  than  Mortgagees. — 
A  receiver  will  not  be  appointed,  on  the  application 
of  a  mortgagor,  against  a  mortgagee  who  is  in  posses- 
sion by  virtue  of  an  agreement  with  a  mortgagor,  where 
the  mortgagee  practiced  no  fraud  in  obtaining  posses- 
sion, and  it  is  undisputed  that  the  mortgagor  is  in- 
debted to  the  mortgagee.  Waste,  alone,  by  the  mort- 
gagee in  possession  is  not  a  sufficient  ground  for  a  re- 
ceiver in  such  a  case.^^* 

The  right  to  have  a  receiver  appointed,  in  aid  of  pro- 
ceedings to  foreclose  a  mortgage,  does  not  rest  exclu- 
sively with  the  mortgagee,  or  his  assignee,  but  may  be 
exercised  by  any  other  party  to  the  proceeding,  when 
necessary  to  protect  his  interest  in  the  subject-matter  of 
the  litigation. ^^^ 

193  Miltenberger  v.  Eailroad  Co.,  106  U.  S.  28G,  307,  1  Sup.  Ct.  140, 
158;  Williamson  v.  Gerlach,  41  Ohio  St.  682;  Bank  v.  Tilden,  66  Hun, 
■635,  22  N.  Y.  Supp.  11;  Cross  v.  Will  Co.  Nat.  Bank,  177  111.  33,  52 
N.  E,  322.  See,  also,  New  Jersey  Title  G.  &  T,  Co.  v.  Cone,  64  N.  J. 
Eq.  45,  53  Atl.  97.  Contra,  that  it  is  immaterial  whether  the  ap- 
pointment was  general:  Nesbit  v.  Wood,  22  Ky.  Law  Eep.  127,  56 
S.  W.  714. 

194  Brundage  v.  Home  etc.  Loan  Assn.,  11  W^ash.  277,  39  Pac.  666. 
T'or  receivers  in  behalf  of  judgment  creditors  of  the  mortgagor,  se« 
post,   §   107. 

195  Main  v.  Ginthert,  92  Ind.  180.  In  this  case  a  wife  joined  her 
husband  in  the  execution  of  a  mortgage  of  his  lands  to  secure  his 
debt;  and  her  inchoate  interest  afterward  becoming  absolute  by  rea- 
son of  a  sheriff's  sale,  according  to  a  statute  of  the  state,  it  was  her 
right,  upon  foreclosure  of  the  mortgage,  to  have  the  other  two-thirds 
of  the  land  exhausted  before  resort  should  be  had  to  her  interest. 
Held,  if  the  two-thirds  were  insufficient  in  value  to  satisfy  the  mort- 
gage, and  her  husband  was  insolvent,  she  was  entitled,  pending  the 
suit,  to  have  a  receiver  appointed  of  the  rents  and  profits  of  the 
two-thirds,  so  that,  if  necessary,  they  might  be  applied  upon  the 
•debt.     In  Philadelphia  Mortgage  &  T.  Co.  v.  Oyler,  61  Neb.  702,  85 


§  104  EQUITABLE     EEMEDIES.  186 

§  104.  Chattel  Mortgages. — A  receiver  cannot  be  ap- 
pointed in  behalf  of  a  chattel  mortgagee  except  in  a 
suit  to  foreclose  the  mortgage.^^^  A  receiver  was  re- 
fused on  foreclosure  of  a  chattel  mortgage  where  it  ap- 
peared prima  facie  that  the  mortgagor  was  solvent  ;^^^ 
and  where  it  appeared  that,  although  the  mortgagor 
was  insolvent,  the  security  was  not  being  impaired, 
whether  any  amount  was  due  was  controverted,  and 
the  appointment  of  a  receiver  would  absolutely  destroy 
the  value  of  the  property  as  a  newspaper.^ ^^  Danger 
of  the  loss  or  impairment  of  the  mortgaged  property 
is  a  common  ground  for  a  receiver.^^^  Attachment 
and  sale  thereunder  by  the  unsecured  creditors  of  the 
mortgaged  personalty  does  not  defeat  the  right  of  the 
mortgagee  to  a  receiver  of  the  property  ;^*^*'  and  where 
a  chattel  mortgagee  filed  his  bill  to  foreclose,  and  an 
attaching  creditor  of  a  person  not  the  mortgagor  seized 
upon  the  same  chattels,  and  by  an  auditor  offered  them 
for  sale,  the  court  not  only  restrained  the  attaching 
creditor  from  selling,  but  also  appointed  a  receiver 
with  authority  to  make  a  sale,  in  order  to  avoid  a  mul- 
tiplicity of  suits  and  to  preserve  the  value  of  the  prop- 
erty until  the  rights  of  the  parties  could  be  deter- 
mined.^*^^ 

N.  W.  899,  it  was  held  that  a  receiver  might  be  appointed  on  the 
application  of  a  defendant  who  was  liable  for  a  deficiency  judgment, 
on  proper  grounds  being  shown. 

196  State  V.  Union  Nat,  Bank,  145  Ind.  537,  57  Am.  St.  Eep.  209^ 
44  N.  E.  585. 

197  Stillwell-Bierce  etc.  Co.  v.  Williamston  etc.  Co.,  80  Fed.  68. 
i«8  Whitehead  v.  Hale,  118  N.  C.  601,  24  S.  E.  360. 

1&9  Valley  Nat.  Bank  v.  H.  B.  Claflin  Co.,  108  Iowa,  504,  79  N.  W. 
279  (under  the  Iowa  statute  concerning  receivers) ;  Maish  v.  Bird,  59 
Iowa,  307,  13  N.  W.  298  (same);  Logan  v.  Slade,  28  Fla.  699,  10 
South.  25. 

200  Cooper  v.  Berney  Nat.  Bank,  99  Ala.  119,  11  South.  760. 

201  Wiedemann  v.  Sann  (N.  J.  Eq.),  31  Atl.  211.  See,  also,  Crow 
V.  Red  River  County  Bank,  52  Tex.  362. 


187     EECEIVEES  IN  JUDGMENT  CEEDITOES'  SUITS.  §§105,106 

§  105.  (4)  Suits  to  Enforce  Equitable  Liens;  Statutory 
Liens. — Receivers  may  be  appointed  in  suits  to  enforce 
equitable  liens  under  circumstances  similar  to  those  in 
which  they  may  be  appointed  in  foreclosing  mort- 
gages.2°2  It  has  been  held,  however,  that  the  plaintiff 
in  an  action  to  foreclose  a  mechanic's  lien  has  no  in- 
terest in  the  property,  like  that  of  a  mortgagee,  which 
entitles  him  to  a  receiver  of  the  rents  and  profits  pen- 
dente lite,  in  the  absence  of  statutory  authority  for  the 
appointment.  ^°^  On  the  other  hand,  it  has  been  de- 
cided that  in  an  action  to  enforce  a  statutory  lien  for 
machinery  furnished  to  a  steamboat,  in  the  absence  of 
special  provisions  regulating  the  proceedings,  the  full 
equity  powers  of  the  court  may  be  invoked,  and  a  re- 
ceiver appointed  to  take  charge  of  the  property  pending 
the  proceedings  ;^°^  and  the  same  is  true  of  an  action 
to  enforce  a  statutory  lien  of  a  laborer  on  an  oil-well.^°* 

§  106.  Judgment  Creditors'  Suits:  In  General. — It  has 
been  held,  in  many  cases,  that  in  a  judgment  creditor's 
suit,  on  the  return  of  the  execution  unsatisfied,  it  is 
almost  a  matter  of  course  to  appoint  a  receiver  to  col- 

202  Pom.  Eq.  Jur.,  §  1334;  Price  v.  Dowdy,  34  Ark.  285  (inadequacy 
of  the  security  and  insolvency  of  the  mortgagor).  Eeceiver  to  pro- 
tect rent  charge:  Pritchard  v.  Fleetwood,  1  Mer.  54.  Pending  a 
suit  to  subject  a  debtor's  real  estate  to  the  payment  of  liens  upon  it, 
the  court  may  sequester  the  rents  and  profits  of  such  real  estate,  and 
appoint  a  receiver  for  that  purpose,  whenever  it  appears  that  the 
debtor  is  insolvent:  Ogden  v.  Chalfant,  32  W.  Va.  559,  9  S.  E.  879; 
and  see  Dunlap  v.  Hedges,  35  W.  Va.  287,  13  S.  E.  656. 

203  Meyer  v.  Seebald,  11  Abb.  Pr.,  N.  S.,  326,  note;  Stone  v.  Tyler, 
173  111.  147,  50  N,  E.  688;  contra,  Webb  v.  Van  Zandt,  16  Abb.  Pr. 
314.  By  the  amendments  of  1895  to  the  mechanic's  lien  law  of  Illi- 
nois, §  12  (Laws  1895,  p.  231),  a  receiver  is  allowed  in  such  cases,  "for 
the  same  causes,  and  for  the  same  purposes,  as  in  cases  of  foreclosure 
of  mortgages." 

204  Washington  Iron  Works  Co.  v.  Jensen,  3  Wash.  584,  28  Pac. 
1019. 

205  Gallagher  v.  Kearns,  27  Hun,  375. 


§  106  EQUITABLE     REMEDIES.  188 

lect  and  preserve  the  judgment  debtor's  property  pend- 
ing the  litigation. 2*^®  If  the  debtor  has  property,  the 
return  of  the  execution  unsatisfied  yields  the  inference 
that  the  property  will  be  misapplied;  while  if  there  is 
nothing  for  the  receiver  to  take,  the  defendant  cannot 
be  injured  by  the  appointment,  and  the  complainant 
proceeds  at  the  peril  of  costs.^°^  Indeed,  it  is  declared 
to  be  the  duty  of  a  complainant  who  has  obtained  an 
injunction  upon  such  a  bill,  restraining  the  defendant 
from  collecting  his  debts  or  disposing  of  property  which 
might  be  liable  to  waste  or  deterioration,  to  apply  to  the 
court  and  have  a  receiver  appointed  without  any  unrea- 
sonable delay.  2*^® 

It  is  usually  a  prerequisite  to  the  filing  of  a  creditor's 
bill  that  execution  must  have  been  returned  unsatis- 
fied upon  the  plaintiff's  judgment;  unless  the  purpose 
of  the  suit  is  merely  to  set  aside  a  fraudulent  convey- 
ance or  transfer  and  thus  remove  an  obstacle  which 
may  render  the  execution  inefficient.  In  the  latter  case 
it  is  usually  held  sufficient  if  the  plaintiff  has  proceeded 

206  Bloodgood  V.  Clark,  4  Paige  (N.  Y.),  574;  Osborn  v.  Heyer, 
2  Paige,  343;  Fitzburgh  v.  Everingham,  6  Paige,  29;  Bank  of  Monroe 
V.  Scbermerhorn,  Clarke  Ch.  (N.  Y.)  214;  Lent  v.  McQueen,  15  How. 
Pr,  313;  Gage  v.  Smith,  79  111.  219;  Lutt  v.  Grimont,  17  111.  App.  308; 
Hirsch  v.  Israel,  106  Iowa,  498,  76  N.  W.  811;  Turnbull  v.  Prentiss 
Lumber  Co.,  55  Mich.  587,  21  N.  W.  345;  Johnson  v.  Tucker,  2  Tenn. 
Ch.  398.  The  court  has  a  broad  discretion  in  the  appointment  of  a 
receiver  in  a  creditor's  suit  where  an  execution  has  been  returned  un- 
satisfied: Bagley  &  Co.  v.  Seudden,  66  Mich.  97,  33  N.  W.  47;  Dutton 
V.  Thomas,  97  Mich.  93,  56  N.  W.  229.  That  the  court  has  authority 
to  appoint  a  receiver  in  all  cases  where  it  entertains  jurisdiction  of 
a  creditor's  bill,  see  Livingston  v.  Swafford  Bros.  etc.  Co.,  12  Colo. 
App.  331,  56  Pac.  351.  That  on  application  for  a  receiver  it  cannot 
go  behind  the  judgment  and  execution,  see  Lent  v.  McQueen,  15 
How.  Pr.  (N.  Y.)  313, 

207  Bloodgood  V.  Clark,  4  Paige,  474;  Fitzburgh  v.  Everingham, 
6  Paige,  29;  Fuller  v.  Taylor,  6  N.  J.  Eq.  (2  Halst.  Ch.)  301. 

208  Osborn  v.  Heyer,  2  Paige,  342;  Bloodgood  v.  Clark,  4  Paige, 
474;  Bank  of  Monroe  v.  Schermerhorn,  Clarke  Ch.  214. 


189         EECEIVERS   IN   JUDGMENT   CREDITORS'   SUITS.     §   lOG 

SO  far  in  pursuit  of  his  legal  remedies  as  to  obtain  a 
lien  upon  the  property.^"''  The  assertion  frequently 
made,  that  the  creditor  must  have  exhausted  his  legal 
remedy  before  applying  for  a  receiver,  must,  therefore, 
be  considered  in  the  light  of  this  distinction,  and  with 
reference  to  the  facts  of  the  particular  case.^^** 

Fraudulent  assignments  by  a  judgment  debtor  often 
afford  a  ground  for  the  appointment  of  a  receiver  in 
favor  of  judgment  creditors.^^^ 

The  question  whether  a  creditor's  suit  may  be  main- 
tained and  a  receiver  appointed  against  the  estate  of  a 
decedent  in  the  process  of  administration  is  one  that 
has  received  different  answers,  varying  with  the  view 

209  See  post,  vol.  II,  chapter  on  "Creditors'  Bills." 

210  That  a  receiver  should  not  be  appointed  when  the  plaintiff  and 
the  sheriff  know  of  the  existence  of  property  subject  to  execution, 
iind  that  there  was  no  impediment  to  the  sale,  see  Congdon  v.  Lee, 
y  Edw.  Ch.  304;  or  when  no  necessity  existed,  and  no  copy  of  the  bill 
was  served  upon  the  defendant:  Hart  v.  Sims,  3  Edw.  Ch.  266;  or 
when  execution  was  not  issued  to  the  county  of  the  defendant's  resi- 
dence: Minkler  v.  United  States  Sheep  Co.,  4  N.  D.  507,  62  N.  W. 
594,  33  L.  E.  A.  546;  V^illiams  v.  Hogeboom,  8  Paige,  469.  As  to 
receiver  of  joint  property  of  two  defendants  on  a  judgment  rendered 
against  one,  see  Austin  v,  Figueira,  4  Paige,  56.  As  to  the  appoint- 
ment on  return  of  the  execution  unsatisfied  made  before  the  proper 
return  day,  see  Williams  v.  Hubbard,  Walk.  Ch.  (Mich.)  28. 

That  a  return  of  the  execution  unsatisfied  is  not  necessary  where 
Ihe  purpose  of  the  suit  is  to  set  aside  a  fraudulent  conveyance,  see 
Chautauqua  County  Bank  v.  White,  6  N.  Y.  236,  57  Am.  Dec.  442. 
For  an  interpretation,  in  such  cases,  of  the  Iowa  statute  requiring  the 
applicant  to  show  that  "he  has  a  probable  right  to  or  interest  in  the 
property  which  is  in  controversy,"  see  Clark  v.  Raymond,  86  Iowa, 
661,  53  N.  W.  354;  Hirsch  v.  Israel,  106  Iowa,  498,  76  N.  W.  811. 

211  Connah  v.  Sedgwick,  1  Barb.  210  (insolvency  of  the  assignee 
a  good  cause  for  the  appointment  of  a  receiver) ;  Shainwald  v.  Lewis, 
7  Saw.  148,  6  Fed,  766  (an  instructive  case);  Strong  v,  Goldman,  8 
Biss.  552,  Fed.  Cas.  No.  13,542;  Nat.  Bank  of  the  Republic  v.  Hobbs, 
118  Fed.  627.  That  a  state  of  facts  which  would  warrant  a  receiver 
in  aid  of  a  judgment  creditor  whose  debtor  has  made  a  fraudulent 
conveyance,  authorizes  the  appointment  in  behalf  of  a  purchaser  at 
sheriff's  sale  under  the  judgment,  see  Mays  v.  Rose,  Freem.  Ch. 
(Miss.)  718. 


§  107  EQUITABLE     EEMEDIES.  190 

held  in  regard  to  the  jurisdiction  of  equity  in  matters 
of  administration.2^2 

§  107.  Same;  Receiver  of  Debtor's  Property  Subject  to 
Prior  Mortgage — With  respect  to  a  receiver  of  the  rents 
and  profits  of  mortgaged  premises  belonging  to  the 
judgment  debtor,  the  plaintiff  in  a  creditor's  suit  stands 
in  much  the  same  position  as  a  junior  mortgagee. 
Thus,  such  a  receiver  will  not  be  appointed  as  against 
a  mortgagee  in  possession,  if  anything  remains  due 
upon  his  mortgage.^^^  But  a  receiver  of  the  rents  and 
profits  of  an  equity  of  redemption  fraudulently  con- 
veyed is  proper,  where  the  debtor  and  his  grantee  are 
insolvent;-^*  and  such  a  receiver  may  be  appointed 
where  the  debtor's  property  is  encumbered  by  numerous 
mortgages  and  judgments  whose  priorities  are  to  be  as- 
certained, and  the  real  estate  is  insufficient  to  pay  the 
indebtedness.^^^ 

A  receiver  may  be  appointed  and  an  injunction 
granted,  in  a  proper  case,  to  restrain  the  judgment 
debtor  from  selling  his  goods,  notwithstanding  a  mort- 
gage thereon,  not  yet  due,  to  another  person.  Such  a 
bill  is  sufficient  if  it  alleges  that  executions  upon  valid 
judgments  have  been  levied  upon  goods  in  a  store; 
that  a  sale  thereof  to  satisfy  the  judgments  is  sought  to 
be  prevented  by  the  holder  of  a  prior  mortgage  thereon ; 

212  See  Pom.  Eq.  Jur.,  §  1154;  Sylvester  v.  Eeed,  3  Edw.  Ch.  (N. 
Y.)  296;  McKaig  v.  James,  66  Md.  583,  8  Atl.  663;  Davis  v.  Chapman, 
83  Va.  67,  5  Am.  St.  Eep.  251,  1  S.  E.  472;  Warfield  v.  Owens,  4  Gill 
(Md.),  364. 

213  Quinn  v.  Brittain,  3  Edw.  Ch,  (N.  Y.)  314;  United  States  v. 
Masich,  44  Fed.  10  (the  court  may  issue  an  injunction  in  such  a  case 
to  protect  the  property  and  to  apply  the  rents  and  profits  to  the 
satisfaction  of  the  mortgage) ;  Furlong  v.  Edwards,  3  Md.  79. 

214  Freeman  v.  Stewart,  119  Ala.  158,  24  South.  31. 

215  Smith  v.  Butcher,  28  Gratt.  144;  Grantham  v.  Lucas,  15  W.  Va. 
425. 


191         EECEIVEKS  IN  JUDGMENT   CREDITORS'   SUITS.     §  108 

that  the  property  is  more  than  sufficient  to  satisfy  the 
mortgage,  and  the  debtor  has  no  other  property;  that 
since  the  execution  of  the  mortgage,  the  goods  remain- 
ing in  the  possession  of  the  mortgagor,  some  of  them 
had  been  sold  and  other  goods  substituted  in  their  place, 
and  that  if  the  debtor  is  allowed  to  retain  the  posses- 
sion of  the  goods  he  would  so  dispose  of  them  that  the 
complainant's  claims  would  be  wholly  lost.-^^ 

§  108.  Same;  Nature  of  the  Property  as  Affecting  Ap- 
pointment— Receiver  of  Rents — The  defendant's  denial 
that  there  is  any  property  to  protect  is  no  reason  for 
refusing  to  appoint  a  receiver;  indeed,  the  discovery 
of  assets  is  an  important  part  of  the  receiver's  func- 
tion.217 

Where  a  contest  as  to  the  title  to  real  estate  is  in- 
volved in  the  suit,  and  a  receiver  is  sought  of  the  rents 
and  profits  pending  the  litigation,  the  principle  which 
has  been  mentioned  in  a  previous  section  comes  into 
play,  and  the  possession  of  the  adverse  holder  will 
rarely  be  disturbed.^^^  Thus,  where  the  purpose  of  the 
judgment  creditor's  action  is  to  remove  an  alleged 
fraudulent  conveyance  of  real  estate,  he  is  not  entitled, 
as  against  the  person  claiming  the  property  under  the 
conveyance,  to  a  receiver  of  the  rents  and  profits  pen- 
dente lite,  unless  upon  a  strong  case  of  danger  to  the 
property  and  inability  to  respond  to  a  decree  because 
of  insolvency.2^^ 

216  Rose  V.  Bevan,  10  Md.  466,  69  Am.  Dec.  170. 

217  Bloodgood  V.  Clark,  4  Paige  Ch.  574;  Fuller  v.  Taylor,  6  N.  J. 
Eq.   301. 

218  See  ante,  §  87. 

219  Vause  V.  Woods,  46  Miss.  120;  National  Union  Bank  v.  Riger, 
38  App.  Div.  123,  56  N.  Y.  Supp.  545;  Ohlhauser  v.  Doud,  74  Wis. 
400,  43  N.  W.  169.  In  the  last  case,  however,  it  was  held  that  a  re- 
ceiver was  properly  appointed  for  the  purpose  of  taking  charge  of 
money  substituted  for  a  part  of  the  land  by  virtue  of  condemnation 
proceedings,  although  the  money  had  been  paid  to  a  clerk  of  court. 


jl  100  EQUITABLE     REMEDIES.  li>li 

Under  peculiar  circumstances  a  receiver  of  rents  may 
be  the  most  effectual  means  of  carrying  into  effect  the 
decree;  as,  where  a  building  was  erected  by  the  judg- 
ment debtor  from  his  individual  funds  on  land  occupied 
by  him  as  a  cestui  que  trust,  a  receiver  was  appointed 
to  apply  the  rents  on  the  judgment,  and  the  trustees 
were  enjoined  from  collecting  them.^^** 

By  the  English  practice,  a  receiver  of  rents  of  a  debtor's 
real  estate  might  be  allowed  in  the  first  instance,  if  the 
bill  claimed  satisfaction  out  of  both  the  personal  and 
real  estate  of  the  debtor,  and  it  appeared  probable  from 
the  defendant's  answer  that  there  was  no  personal  es- 
tate."i 

§  109.  Same;  Miscellaneous  Cases. — A  receiver  has  been 
appointed  of  a  husband's  interest  in  a  mercantile  busi- 
ness, which  he  carried  on  ostensibly  as  agent  for  his 
wife,  in  order  to  restrain  the  disposition  of  the  prop- 
erty, and  to  subject  the  property  to  the  payment  of  a 
judgment  recovered  against  the  husband.^^^ 

A  receiver  has  been  appointed  for  the  purpose  of  re- 
covering rings  and  jewelry  belonging  to  the  judgment 
debtor,  since  these  are  articles  generally  worn  on  the 
person,  and  it  might  be  out  of  the  power  of  the  sheriff 
to  levy  on,  or  take  possession  of  them.^-^ 

It  is  said  that  a  receiver  will  not  be  appointed  to 
t^ake  possession  of  property  which,  though  belonging 
to  the  defendant,  cannot  for  any  reason  be  subjected 
to  the  complainant's  judgment;  or  for  property  which, 
though  nominally  belonging  to  defendant,  is  beneficially 
owned  by  third  persons,  or  is  encumbered  beyond  its 
value.     In  such  a  case  it  can  in  no  sense  be  said  that 

220  Johnson  v.  Woodruff,  8  N.  J.  Eq.   120. 

221  Jones  V.  Pugh,  8  Ves.  71. 

222  Penn  v.  Whiteheads,  12  Gratt.  74. 

aet  Frazier  v.  Barnum,  19  N.  J.  Eq.  316,  97  Am.  Dec.  666. 


193     RECEIVERS  IN   SUPPLEMENTARY   PROCEEDINGS.     §  110 

such  property,  or  any  interest  of  the  defendant  therein, 
is  subject  to  the  payment  of  his  debts,  or  can  be  reached 
and  applied  thereto. ^^^ 

A  judgment  creditor's  bill  to  reach  property  or  in- 
terests unknown  to  the  complainant  and  perhaps  con- 
cealed need  not  point  out  the  specific  property  sought 
to  be  reached.^^^ 

§  110.  Receivers  in  Proceedings  Supplementary  to  Exe- 
cution— Proceedings  supplementary  to  execution  being 
designed  to  be  a  substitute  for  the  equity  procedure  by 
creditors'  bill,  receivers  are  appointed  in  such  proceed- 
ings very  much  as  a  matter  of  course,  where  it  ap- 
pears that  the  judgment  creditor  has,  or  probably  has, 
property  that  ought  to  be  subjected  to  the  satisfaction 
of  the  judgment,  after  the  return  of  the  execution  un- 
satisfied.^-*^    Probability  that  the  judgment  debtor  has, 

224  McCullough  V.  Jones,  91  Ala.  186,  8  South.  696. 

225  Button  V.  Thomas,  97  Mich.  93,  56  N.  W.  228. 

226  See  Hervy  v.  Gibson,  10  Bosw.  (N.  Y.)  591;  People  v.  Mead, 
29  How.  Pr.  (N.  Y.)  360;  Coates  v.  Wilkes,  92  N.  C.  376.  The  last 
case  contains  such  an  excellent  statement  of  the  general  purpose  and 
character  of  these  proceedings,  and  of  the  receivership  therein,  that 
I  quote  at  some  length:  Coates  v.  Wilkes,  92  N.  C.  376,  379-384,  per 
Merrimon,  J.:  "The  proceedings  supplementary  to  the  execution  in 
an  action,  as  allowed  and  provided  for  by  the  code,  §§  488-500,  are 
mainly,  if  not  altogether,  equitable  in  their  nature.  While,  perhaps, 
they  go  beyond  in  some  respects,  they  are  in  large  part  a  substitute 
for,  and  take  the  place  of  the  methods  of  granting  relief  in  equity  in 
favor  of  a  judgment  creditor  as  against  his  judgment  debtor,  after 
he  had  exhausted  his  remedy  at  law  by  the  ordinary  process  of  exe- 
cution, as  these  prevailed  before  the  present  code  system  of  procedure 
was  adopted:  Hasty  v.  Simpson,  77  N.  C.  69;  Rand  v.  Rand,  78  N.  C. 
12;  Hinsdale  v.  Sinclair,  83  N.  C.  338;  High  on  Rec,  §  401. 

"In  the  order  of  procedure,  such  supplementary  proceedings  are 
incident  to  the  action;  they  extend  and  enlarge  its  scope  for  the  pur- 
pose of  reaching  the  judgment  debtor's  property  of  every  kind  sub- 
ject to  the  payment  of  his  debts,  that  cannot,  for  any  cause,  be  suc- 
eeesfully  reached  by  the  ordinary  process  of  execution^  and  subjecting 

Equitable  Remedies,  Vol.  1—13 


§  110  EQUITABLE     REMEDIES.  194 

or  has  fraudulently  conveyed,  such  property,  is  tlie 
criterion;  certainty  or  conclusiveness  of  proof  is  not 

the  same,  or  so  much  thereof  as  may  be  necessary,  to  the  payment  of 
the   judgment. 

"In  effectuating  this  purpose,  it  very  frequently  becomes  necessary 
to  grant  relief  by  injunction  and  the  appointment  of  a  receiver,  as 
in  other  cases.  Indeed,  a  receiver  is  appointed  almost  as  of  course, 
where  it  appears  that  the  judgment  debtor  has,  or  probably  has,  prop- 
erty that  ought  to  be  so  subjected  to  the  satisfaction  of  the  judgment, 
after  the  return  of  the  execution  unsatisfied.  The  receivership  oper- 
ates and  reaches  out  in  every  direction  as  an  equitable  execution,  and 
it  is  the  business  of  the  receiver,  under  the  superintendence  of  the 
court,  to  make  it  effectual  by  all  proper  means. 

"If  it  appear  that  the  debtor  has  funds  or  property  in  his  own 
hands,  the  court  may,  by  proper  order,  apply  the  same  to  the  judg- 
ment; but  if  the  title  to  the  property  alleged  or  claimed  to  be  that 
of  the  debtor,  be  in  dispute,  or  it  be  disposed  of  by  the  debtor, 
in  fraud  of  creditors,  in  such  way  as  that  it  cannot  be  promptly 
reached  by  execution  or  the  order  of  the  court,  then  a  receiver  may 
be  appointed  at  once.  And  it  is  not  essential  to  such  appointment 
that  it  shall  actually  appear  that  the  debtor  has  property;  if  it  ap- 
pear with  reasonable  certainty,  or  that  it  is  probable  that  he  has 
property  that  ought  to  be  subjected  to  the  payment  of  the  judg- 
ment, a  receiver  may  be  appointed:  Bloodgood  v.  Clark,  4  Paige,  574; 
Osborne  v.  Hyer,  2  Paige,  342 

"The  judgment  debtor  cannot  complain  at  the  appointment  of  a 
receiver.  If  he  has  property  subject  to  the  payment  of  his  debt, 
it  ought  to  be  applied  to  it;  if  he  has  not  such  property,  this  fact 
ought  to  appear,  with  reasonable  certainty,  to  the  satisfaction  of 
the  creditor.  The  receiver  proceeds  to  do  this,  not  at  the  peril  of 
the  debtor,  but  at  his  own  peril,  as  to  costs,  if  he  fails  in  his  action. 
The  purpose  of  the  law,  in  such  proceedings,  is  to  afford  the  largest 
and  most  thorough  means  of  scrutiny,  legal  and  equitable,  in  their 
character,  in  reaching  such  property  as  the  debtor  has,  that  ought 
justly  to  go  to  the  discharge  of  the  debt  his  creditor  has  against 
him 

"It  was  not  necessary,  indeed,  not  proper,  under  the  circumstances 
of  this  case,  for  the  court  to  find  conclusively,  whether  or  not  the 
defendant  had  certainly  made  a  disposition  of  his  property,  fraudu- 
lent as  to  his  creditors.  If  there  was  evidence  tending  strongly  to 
show  such  a  disposition  of  it,  or  that  he  was  refusing,  covertly  or 
otherwise,  to  apply  his  property  to  the  judgment,  this  was  sufii- 
cient  to  warrant  the  appointment  of  a  receiver,  to  the  end  that  he 
might  take  such  steps,  and,  if  need  be,  bring  such  actions  as  would 
enable  him  to  secure  and  recover  any  property  of  the  defendant  so 


195     EECEIVERS  IN   SUPPLEMENTABY   PEOCEEDINGS.     §  110 

required  in  order  to  justify  the  appointment.^^'^  The 
defendant's  denial  of  the  ownership  of  property,  or  his 
debtor's  denial  of  the  existence  of  an  alleged  claim,  is 
not  conclusive  in  this  matter,  but  the  contrary  may  be 
made  to  appear  by  other  witnesses,  and  a  receiver  may 
be  appointed  on  their  testimony.^^*  Further,  if  it  ap- 
pear that  the  judgment  debtor  has  real  estate  that  is 
subject  to  sale  under  execution,  and  that  there  are  no 
obstacles  to  hinder  such  sale,  a  receiver  will  be  refused, 
in  many  states,  in  order  that  his  statutory  right  of  re- 
demption may  not  be  imperiled. ^^^     Subject  to  these 

conveyed  or  withheld  by  him,  to  be  applied  to  the  judgment  of  the 
plaintiff.  To  warrant  the  appointment  of  a  receiver,  it  need  not 
appear,  certainly  or  conclusively,  that  the  defendant  has  property 
that  he  ought  to  apply  to  the  judgment — if  there  is  evidence  tending 
in  a  reasonable  degree  to  show  that  he  probably  has  such  property, 
this  is  sufficient,  or  if  it  appears  probable  that  he  has  made  a 
fraudulent  conveyance  of  his  property  as  to  his  creditors,  this  ia 
sufficient." 

227  Coate  V.  Wilkes,  92  N.  C.  376,  384.  "The  discretion  to  ap- 
point a  receiver  is  legal,  not  arbitrary.  The  judge  cannot  lawfully 
refuse  to  appoint  a  receiver  if  there  be  presented  to  him  competent 
evidence  of  assets";  Wilkinson  v.  Market,  €5  N.  J.  L.  518,  47  All. 
488.  On  the  other  hand,  when  it  does  not  appear  probable  that  the 
judgment  debtor  has  any  property,  rights  or  credits  as  to  which  a 
receiver  is  required,  the  appointment  will  be  refused:  Eodman  v. 
Harvey,  102  N.  C.  1,  8  S.  E.  888;  Adler  v.  Turnbull,  57  N.  J.  L,  62, 
30  Atl.  319;  Colton  v.  Bigelow,  41  N.  J.  L.  266.  "Mere  suspicion 
or  surmise  falls  far  short  of  what  is  required  to  justify  the  exercise 
of  a  power  which  should  be  sparingly  used":  Flint  v.  Zimmer- 
man, 70  Minn.  346,  73  N.  W.  175. 

228  Seyfert  v.  Edison,  47  N.  J.  L.  428,  1  Atl.  502;  Colton  v. 
Bigelow,  47  N.  J.  L.  428,  1  Atl.  502;  Knight  v.  Nash,  22  Minn.  452. 

229  Bunn  v.  Daly,  24  Hun,  526;  Second  Ward  Bank  v.  Upmann, 
12  Wis.  499;  but  see  Bailey  v.  Lane,  15  Abb.  Pr.  373,  note;  and  Bill- 
ing v.  Foster,  21  S.  C.  334.  In  the  last  case  it  was  held  that  although 
the  examination  disclosed  property  subject  to  execution  in  the  debt- 
or's hands,  sufficient  to  satisfy  the  judgment,  a  receiver  might 
nevertheless  be  appointed;  that  the  rule  prohibiting  the  appointment 
in  such  cases,  in  creditor's  bills,  depended  on  the  fact  that  equity 
and  law  were  administered  by  different  tribunals;  and  as  the  pow- 
ers  of   the   court   of   equity   were   only   invoked   in   aid   of   the   law 


§  111  EQUITABLE     EEAIEDirS.  196 

restrictions  the  appointment  is  usually  spoken  of  as  a 
matter  of  sound  legal  discretion, "^*^  a  power  to  be  exer- 
cised only  with  caution  and  in  the  absence  of  other  ade- 
quate remedies  available  to  the  creditor.^^^ 

§  111.  (5)  In  Suits  for  Specific  Performance,  or  to  En- 
force Vendor's  Lien. — A  receiver  may  be  appointed  in  a 
suit  by  a  vendor  to  enforce  the  specific  performance  of 
a  contract  for  the  sale  of  land  against  a  vendee  who  is 

court,  such  powers  were  not  exercised  where  such  aid  was  not  neces- 
sary. 

230  See  Wilkinson  v.  Markert,  65  N.  J.  L.  518,  47  Atl.  488;  Flint 
T.  Webb,  25  Minn.  263;  Bean  v.  Heron,  65  Minn.  64,  67  N.  W.  805; 
Flint  V.  Zimmerman,  70  Minn.  346,  73  N.  W.  175;  Poppitz  v.  Eo^'ues, 
76  Minn.  109,  78  N.  W.  964.  "That  a  receiver  may,  in  the.  discre- 
tion of  the  court,  be  appointed  immediately  upon  granting  the  order 
for  the  examination,  there  can  be  no  doubt;  and  such,  it  seems,  is 
the  safer  and  better  practice,  inasmuch  as  it  effectually  secures  to 
the  prosecuting  creditor  that  priority  upon  his  debtor's  property 
which  his  vigilance  justly  entitles  him  to";  citing  Hervy  v.  Gibson, 
10  Bosw.  (N.  Y.)  591,  and  People  v.  Mead,  29  How.  Pr.  (N.  Y.)  360. 

231  "The  mere  fact  that  upon  a  debtor's  examination  property 
is  disclosed  which  may  be  subjected  to  the  satisfaction  of  the  cred- 
itor's judgment  does  not  necessarily  entitle  the  latter,  as  a  matter 
of  right,  to  have  a  receiver  appointed It  is  against  the  gen- 
eral policy  of  the  law  to  permit  a  creditor  to  resort  to  it  [receiver- 
«hip]  where  he  has  other  adequate  remedy":  Poppitz  v.  Eogncs, 
76  Minn.  109,  78  N.  W.  964.  "Equitable  principles,  which  are  al- 
ways very  flexible,  should  be  taken  into  account  in  determining 
whether  a  receiver  should  be  appointed.  A  receivership,  the  costs 
of  which  have  to  be  paid,  if  any  property  is  reached,  out  of  the 
debtor's  estate,  is  a  very  drastic  remedy,  and  is  subject  to  great 
abuses.  At  the  present  day  it  unfortunately  is  often  more  bene- 
ficial to  the  receiver  and  his  attorneys  than  to  the  creditor.  It 
should,  therefore,  be  resorted  to  with  great  caution,  and  sparingly. 
When  it  clearly  appears  that  a  creditor  holds  mortgage  security  am- 
ple to  satisfy  his  whole  debt,  his  application  for  a  receiver  of  his 
debtor's  property  ought,  ordinarily,  to  be  denied.  In  such  a  case 
it  would  be  an  abuse  of  judicial  discretion  to  appoint  one,  unless, 
possibly,  there  were  some  exceptional  circumstances."  Such  circum- 
stances were  held  to  be  present,  and  the  appointment  was  held  not 
to  be  an  abuse  of  discretion,  although  the  judgment  creditor  had  not 
exhausted  his  mortgage  securitj:  Bean  v.  Heron,  65  Minn.  64,  67 
N.  W.  805. 


i97  EECEIVERS  IN  SPECIFIC  PERFORMANCE,  ETC.       S  HI 

in  possession,  under  the  same  circumstances  as  in  a 
suit  by  a  mortgagee  for  foreclosure  of  his  mortgage; 
viz.,  when  the  land  is  a  doubtful  or  inadequate  security, 
and  the  vendee  is  insolvent,  or  committing  waste  ;^' 
and  the  same  rule  generally  holds  true  in  suits  by  a 
vendor  who  has  retained  the  legal  title  to  foreclose  his 
(so-called)  "vendor's  lien"  by  a  sale  of  the  property  for 
the  unpaid  purchase-money.^^^  In  some  states,  how- 
ever, a  stronger  showing  is  required,  and  waste,  threat- 
ened or  committed  by  the  vendee,  or  bad  husbandry, 
impairing  the  value  of  the  vendor's  security,  is  essential 
as  a  foundation  for  the  relief.^^^     In  England,  a  re- 

232  Pom.  Eq.  Jur.,  §  1334;  Phillips  v.  Eiland,  52  Miss.  721;  and 
see  Tufts  v.  Little,  56  Ga.  139;  Gunley  v.  Thompson,  56  Ga.  316; 
Chappell  V.  Boyd,  56  Ga.  578;  Hall  v.  Jenkinson,  2  Ves.  &  B.  125  (ven- 
dee insolvent  and  attempting  to  convey  his  estate  for  the  benefit 
of  creditors);  Boehm  v.  Wood,  2  Jacob  &  W.  236  (receiver  pending  % 
reference  as  to  the  validity  of  the  plaintiff's  title). 

233  See  Smith  v,  Kelley,  31  Hun,  387;  Belding  v.  Meloche,  118 
Mich.  223,  71  N.  W.  592  (relief  awarded  to  a  vendor  under  circum- 
stances where  it  would  be  refused  to  a  mortgagee) ;  McCaslin  t. 
State,  44  Ind.  151,  174  (insolvency  of  vendee,  and  waste  by  cutting 
valuable  timber) ;  Cotulla  v.  American  Freehold  L.  M.  Co.  (Tex. 
Civ.  App.),  86  S.  W.  339  (by  statute);  Hughes  v.  Hatchett,  55  Ala. 
631  (relief  refused,  where  insolvency  of  vendee  not  shown,  and 
amount  of  indebtedness  disputed).  In  Belding  v.  Meloche,  supra, 
it  wag  held  that  the  decision  in  Wagar  v.  Stone,  36  Mich.  364,  ia 
which  a  receiver  was  refused  in  a  suit  by  a  mortgagee,  on  account 
of  the  statute  whereby  the  mortgagor  is  entitled  to  possession  until 
after  foreclosure,  did  not  apply  to  the  case  of  foreclosure  of  a  land 
contract,  wherein  it  was  agreed  that  in  case  of  default  the  vendor 
should  be  entitled  to  possession. 

234  See  Columbia  Finance  etc.  Co.  v.  Morgan,  19  Ky.  Law  Rep. 
1761,  44  S.  W.  389,  45  S.  W.  65;  Collins  v.  Eichart,  14  Bush  (Ky.), 
621.  In  Georgia,  a  bill  alleging  the  insolvency  of  the  vendee,  and 
the  deterioration  in  value  of  the  land,  but  not  showing  that  the 
vendee  is  less  able  to  pay  when  the  debt  matured  than  when  it  wan 
incurred,  or  that  the  deterioration  is  due  to  the  vendee's  waste  or 
mismanagement,  makes  no  case  for  a  receiver  of  the  rents  and  profits 
of  the  premises:  Turnlin  v.  Vanhorn,  77  Ga.  315,  3  S.  E.  264.  Am 
to  receiver  in  foreclosure  of  the  vendor's  lien  in  Tennessee,  see  Mor- 
ford  V.  Hamner,  3  Baxt.  391;  Darusiuont  v.  Patton,  4  Lea,  597. 


I  118  EQUITABLE     REMEDIES.  198 

ceiver  may  be  allowed  in  a  suit  to  enforce  a  vendor's 
lien  for  land  sold  to  an  insolvent  railway  company, 
after,  but  not  before,  a  final  decree.^^^  A  receiver  to 
secure  the  property  has  occasionally  been  appointed  in 
a  suit  for  specific  performance  instituted  by  the  ven- 

jjgg  236 

§  112.  (6)  In  Behalf  of  TTnsecnred  Creditors  Before 
Judgment. — It  is  the  almost  universal  rule  that  a  cred- 
itor's bill,  whether  to  set  aside  a  fraudulent  transfer  or 
to  reach  equitable  assets,  will  not  lie  in  behalf  of  mere 
general  creditors  who  have  not  prosecuted  their  claims 
to  judgment,  nor  in  any  other  manner  acquired  a  lien 
upon  the  debtor's  property.  The  slowness  and  inade- 
quacy of  the  legal  remedies  open  to  such  creditors  are 
not  considerations  that  can  move  a  court  of  equity,  in 
the  absence  of  statutory  authority,  to  intervene  in  their 
behalf  with  the  instrumentality  of  a  receiver,  to  pre- 
serve the  debtor's  property.^^^     An  apparent  exception 

235  Munns  v.  Isle  of  Wight  E.  Co.,  L.  R.  5  Ch.  414;  Latimer  v. 
Aylesbury  &  B.  Ry.  Co.,  L.  R.  9  Ch.  D.  385. 

236  Where  the  vendor  has  fraudulently  repossessed  himself  of  the 
property:  Dawson  v.  Yates,  1  Beav.  301;  in  an  action  for  the  specific 
performance  of  a  contract  to  assign  a  lease  giving  the  right  to  sink 
or  bore  for  oil,  receiver  to  operate  oil-wells,  pending  the  action,  is 
authorized,  where  the  defendant,  a  non-resident  without  property  in 
the  state,  except  the  machinery  on  the  land,  is  operating  the  wells 
and  selling  the  product:  Galloway  v.  Campbell,  142  Ind.  324,  41 
N.  E.  597.  See,  also,  Mead  v.  Burk,  156  Ind.  577,  60  N.  E.  338.  But 
in  a  suit  to  enforce  an  oral  contract  between  father  and  son,  whereby 
the  son  was  to  have  the  father's  land  on  the  death  of  the  latter, 
in  consideration  of  his  agreement  to  support  the  father,  it  was  im- 
proper to  appoint  a  receiver  of  the  land  on  the  death  of  the  son 
before  full  performance  on  his  part:  Walters  v.  Walters,  132  111.  467, 
23  N.  E,  1120. 

237  Wiggins  v.  Armstrong,  2  Johns.  Ch.  144;  Uhl  v.  Dillon,  10  Md. 
500,  69  Am.  Dec.  172;  Oberholser  v.  Greenfield,  47  Ga.  530;  Kehler 
T.  G.  W.  Jack  Mfg.  Co.,  55  Ga.  639;  Johnson  v.  Farnum,  56  Ga.  144; 
Mayer  v.  Wood,  56  Ga.  427,  429;  Stillwell  ▼.  Savannah  Grocery  Co., 


199  RECEIVEES  FOR  UNSECURED  CREDITORS.  §  112 

to  the  rule  has  been  established  by  a  series  of  cases  in 
Georgia,  where  an  insolvent  debtor,  with  fraudulent 
intent,  has  bought  goods  on  credit  from  the  plaintiff, 
and  afterwards  has  made  a  fraudulent  transfer  of  his 

88  Ga.  100,  13  S.  E.  963;  Turnipseed  v.  Kentucky  Wagon  Co.,  97  Ga. 
258,  23  S.  E,  84;  Blondheim  v.  Moore,  11  Md.  365;  Hubbard  v.  Hub- 
bard, 14  Md.  356;  Carter  v.  Hightower,  79  Tex.  135,  15  S.  W.  223; 
Cahn  V.  Johnson,  12  Tex.  Civ.  App.  304,  33  S.  W.  1000;  Waples- 
Platter  Co.  v.  Mitchell,  12  Tex.  Civ.  App.  90,  35  S.  W.  200.  Uhl  v. 
Dillon,  supra,  was  a  bill  by  general  creditors  for  injunction  and 
receiver,  alleging  that  the  defendant  was  indebted  to  the  complain- 
ants, that  he  was  disposing  of  his  property,  collecting  money  due 
him,  and  secreting  his  money  and  property,  with  the  intent,  as  com- 
plainants were  informed  and  believed,  to  abscond  and  defraud 
them.  The  court  says,  in  part,  by  Bartol,  J.:  "Whatever  may  be 
the  supposed  defects  of  the  existing  laws  of  the  state,  in  leaving  to 
the  debtor  the  absolute  power  of  disposing  of  his  property,  and 
leaving  the  creditor  to  the  slow  and  very  inadequate  legal  remedies 
now  provided,  it  is  solely  in  the  power  of  the  legislature  to  correct 
them.  It  is  not  within  the  province  of  the  chancery  courts  to  stretch 
their  power  beyond  the  limits  of  the  authorities  of  the  law,  for  the 
purpose  of  remedying  such  defects.  Such  a  course  would  be  pro- 
ductive of  great  mischief,  and  make  the  rights  of  the  citizen  depend 
upon  the  vague  and  uncertain  discretion  of  the  judges,  instead  of 
the  safe  and  well-defined  rules  of  law."  Possible  exceptions  to  the 
rule  may  be  found  in  Haggarty  v.  Pittman,  1  Paige,  298,  19  Am. 
Dec.  434  (fraudulent  assignment  to  an  insolvent  assignee) ;  Rosen- 
berg V.  Moore,  11  Md.  376  (objection  that  plaintiff  had  no  judgment 
not  urged). 

In  Aid  of  Attachment.— A  receiver  is  not  warranted  in  an  action 
on  a  simple  money  demand,  in  which  action  property  has  been  at- 
tached. The  fact  that  a  writ  of  attachment  was  issued  does  not 
change  the  nature  of  the  action  to  one  for  the  relief  of  "subjecting 
a  fund  to  the  plaintiff's  claim,"  within  the  meaning  of  the  statute 
authorizing  a  receiver  in  an  action  "by  a  creditor  to  subject  any 
property  or  fund  to  his  claim";  nor  do  writs  of  attachment  issued 
by  two  creditors  on  simple  money  demands  convert  the  action  into 
one  "between  partners  or  others  jointly  owning  or  interested  in  any 
property  or  fund,"  under  another  clause  of  the  same  statute:  State 
V.  Eighth  Judicial  Dist,  Ct.,  14  Mont.  577,  37  Pac.  969.  But  it  has 
been  held  that  the  court  possesses  the  power,  independently  of  stat- 
ute, to  appoint  a  receiver  to  take  charge  of  property  abandoned  by 
a  garnishee:  Northfield  Knife  Co.  v.  Shapleigh,  24  Neb.  635  8  Am. 
St.  Rep.  224,  39  S.  W.  788. 


§112  EQUITABLE     REMEDIES.  SM 

goods  to  a  third  person,  who  is  himself  insolvent;  but 
the  defrauded  creditor's  right  to  the  equitable  relief  of 
a  receiver  is  strictly  limited  to  these  circumstances,  and 
is  based  on  the  ground  that  the  plaintiff,  having  a  right 
to  rescind  the  fraudulent  sale,  had  never,  in  equity, 
parted  with  the  title  to  the  goods. ^^^  The  right  of  a 
creditor  without  judgment,  depending  on  the  general 
jurisdiction  of  equity  in  the  administration  of  the  es- 
tates of  decedents,  to  come  into  equity  to  subject  to  his 
demand  property  fraudulently  conveyed  by  the  debtor 
while  in  life,  there  being  a  deficiency  of  legal  assets, 
is  recognized  in  some  states  ;^^'  and  a  receiver  may  be 
necessary,  in  such  a  suit.^^"  A  further  exception  has 
been  made  in  New  York,  in  the  case  of  the  creditor, 
without  judgment,  of  a  partnership,  suing  on  behalf  of 
himself  and  for  the  benefit  of  other  creditors,  where 
the  indebtedness  is  not  disputed,  and  the  firm  and  its 
members  are  insolvent,  and  have  attempted  to  make  a 
fraudulent  assignment  of  their  property. ^^^     Statutes 

238  Cohen  v.  Meyers,  42  Ga.  46;  Johnson  v.  Farnum,  56  Ga.  144 
(relief  denied  when  plaintiff  does  not  claim  title  to  the  goods,  or 
right  to  rescind  the  sale) ;  Mayer  v.  Wood,  56  Ga.  427,  429  (same) ; 
Wachtel  v.  Wilde,  58  Ga.  50;  Cohen  &  Co.  v.  Morris  &  Co.,  70  Ga. 
313;  Albany  etc.  Steel  Co.  v.  Southern  etc.  Works,  76  Ga.  135,  2  Am. 
St.  Eep.  26;  Wolfe  v.  Claflin,  81  Ga.  64,  6  S.  E.  599;  Martin  v,  Bur- 
gyn,  88  Ga.  78,  13  S.  E.  958.  But  the  appointment  of  a  receiver  is 
erroneous  where  it  appears  that  the  person  to  whom  the  alleged 
fraudulent  transfer  was  made  is  solvent  and  able  to  respond  to  a 
judgment  in  favor  of  the  plaintiff:  Turnipseed  v.  Kentucky  Wagon 
Co.,  97  Ga.  258,  23  S.  E.  84;  Stillwell  v.  Savannah  Grocery  Co.,  88 
Ga.  100,  13  S.  E.  963;  and  where,  under  the  order  of  the  judge,  the 
plaintiffs  had  pointed  out  and  separated  the  goods  in  question,  there 
should  be  no  receiver  appointed  except  for  the  purpose  of  taking 
charge  of  the  goods  so  identified;  Atlantic  Brew.  etc.  Co.  v.  Bluthen- 
thal,  101  Ga.  541,  28  S.  E.  1003. 

239  See  Pom.   Eq.  Jur.,   §    1154,   and   note. 

240  See  Werborn's  Admr.  v.  Kahn,  93  Ala.  201,  9  South.  729. 

241  Mott  V.  Dunn,  10  How.  Pr.  225;  La  Cliaire  v.  Lord,  10  How. 
Pr.  461;  Levy  v.  Ely,  15  How.  Pr.  395;  Jackson  v.  Sheldon,  9  Abb. 
Pr.  127;  and  see  Cohen  &  Co.  v.  Morris  &  Co.,  70  Ga.  313.     Jackson 


201  EECEIVEES  FOR  UNSECURED  CREDITORS.  §  112 

in  several  of  the  states  now  provide  for  creditor's  bills 
by  general,  unsecured  creditors  in  certain  exigencies, 
and  the  right  to  receivers  in  such  suits  has  received 
much  consideration  in  at  least  two  of  these  states. ^^^ 

V.  Sheldon  was  a  case  of  limited  partnership,  and  relief  was  based 
upon  the  neglect  of  the  partners  to  assign  to  a  trustee  for  the  benefit 
of  all  the  partnership  creditors. 

242  Alabama. — Complainants,  on  filing  their  bill  and  service  of 
process,  acquire  an  inchoate  lien  on  the  property  fraudulently  con- 
veyed, and  are  entitled  to  a  receiver  upon  showing  three  things; 
namely,  a  reasonable  probability  of  success  upon  their  part  in  finally 
subjecting  the  property  to  the  satisfaction  of  their  lien;  a  necessity 
of  resorting  to  the  property  to  make  their  debts;  and  a  danger 
that  the  property  will  be  wasted,  disposed  of,  or  gotten  out  of  the 
reach  of  the  court  so  that  the  lien  cannot  be  effectuated:  Heard 
V.  Murray,  93  Ala.  127,  9  South.  514;  Weis  v.  Goetter,  72  Ala.  259. 
A  pending  suit  by  creditors  for  the  benefit  of  all  who  may  join 
is  no  bar  to  a  subsequent  suit  by  a  simple  contract  creditor  aver- 
ring the  collusive  action  of  parties  to  the  former  suit  and  asking 
the  removal  of  a  receiver  appointed  thereunder,  and  that  the  cus- 
tody already  assumed  by  the  court  may  be  extended  to  his  own  case: 
Alabama  etc.  Steel  Co.'  v.  McKeever,  112  Ala.  134,  20  South.  84. 
The  creditor's  remedy  by  attachment  is  usually  adequate;  "it  affords 
iis  ample  redress  and  protection,  in  ordinary  cases,  as  a  receiver- 
ship, fully  securing  the  forthcoming  of  the  property  to  answer  any 
judgment  obtained  in  the  attachment  suit,  if  found  liable  to  the 
attachment":  Pearce  v.  Jennings,  94  Ala.  524,  10  South.  511;  hence, 
when  an  attachment  has  been  levied  on  personalty,  a  receiver  will 
not  be  appointed  in  aid  of  the  suit,  unless  special  circumstances  ara 
shown  rendering  the  attachment  inadequate  and  inefficacious:  Id.; 
and  a  debtor's  threatened  removal  of  his  property  from  the  state, 
while  authorizing  an  attachment  by  the  creditor,  does  not  entitle 
the  latter  to  the  aid  of  a  court  of  equity,  or  the  appointment  of  a 
receiver:  Smith-Dimmick  Lumber  Co.  v.  Teague,  119  Ala.  385,  24 
South.  4.  When  property  of  the  debtor  has  been  attached,  and  the 
statutory  claim  interposed,  it  is  in  the  custody  of  the  law,  and  should 
not  be  taken  away  from  such  custody  and  placed  in  the  hands  of  a 
receiver,  at  the  suit  of  another  creditor:  Dollins  v.  Lindsay,  89  Ala. 
217,  7  South,  234;  Williams  v.  Dismukes,  106  Ala.  402,  17  South.  620; 
but  a  receiver  may  be  had  of  the  surplus  of  the  goods  over  the 
amount  of  the  prior  equitable  attachment  creditor's  claim:  Sackhoif 
V.  Vandegrift,  98  Ala.  192,  13  South.  495. 

Georgia.— " Insolvent    Trader's  Law,"   Stats.    1881,   p.    124;    Code, 
§  3297;   §  3149,  etc.     To  warrant  a  receiver  at  the  suit  of  a  general 


i  113  EQUITABLE     REMEDIES.  202 

§  113.  (7)  Receiver  in  Suits  for  Rescission  of  Contracts 
for  Sale  of  Land — A  receiver  may  be  appointed,  under 
special  circumstances,  in  a  suit  by  a  vendee  of  land  for 

weditor,  it  must  appear  that  the  debtor  is  insolvent:  Collins  v.  My- 
ers, 68  Ga.  530;  and  that  his  effects  will  not  be  exhausted  by  other 
ereditors  having  liens,  before  the  simple  contract  creditors  will  be 
reached  in  the  order  of  distribution:  Id.;  Barnwell  v.  Wofford,  67 
Ga.  50.  See,  further,  as  to  the  right  to  a  receiver  under  these  stat- 
utes, Fechheimer  v.  Baum,  37  Fed.  167,  2  L.  E.  A.  153;  Nussbaum 
▼.  Price,  80  Ga.  205,  5  S.  E.  291;  Pendleton  v.  Johnson,  85  Ga.  840, 
11  S.  E.  144;  Sullivan  v.  McDonald,  86  Ga.  78,  12  S.  E.  215;  Stillwell 
V.  Savannah  Grocery  Co.,  88  Ga.  100,  13  S.  E.  963;  Atlanta  Brewing 
Co.  V.  Bluthental,  101  Ga.  541,  28  S.  E.  1003.  Eeceiver  in  aid  of 
creditors  having  laborers'  liens,  before  judgment,  where  the  plain- 
tiffs ar«  numerous,  the  defendants  insolvent,  and  there  is  "manifest 
danger  of  loss"  (Code,  §  3149)  by  removal  of  the  property  from  the 
state:  Orton  v.  Madden,  75  Ga.  83. 

Michigan. — 3  How.  Ann.  Stats.,  §  8749  (o),  providing  that  a  person 
kaving  a  preferred  labor  claim  against  an  insolvent  person  or  cor- 
poration may  proceed  in  chancery  for  appointment  of  a  receiver,  if 
an  assignment  for  the  benefit  of  creditors  has  been  made.  A  chattel 
mortgage  is  not  such  an  assignment,  within  the  meaning  of  the  stat- 
ute: Wineman  v.  Fisher  Electrical  Works,  118  Mich.  636,  77  N.  W. 
245.  An  order  appointing  a  receiver  of  assets  of  an  insolvent  debtor, 
Bpon  a  bill  by  holders  of  preferred  claims,  and  requiring  an  attach- 
ment creditor  to  surrender  to  him  property  held  by  virtue  of  his 
writ,  is  improvidently  made:  Lawton  v.  Richardson,  115  Mich.  12, 
72  N.  W.  988.  See,  also,  Hall  v.  Donovan,  111  Mich.  395,  69  N.  W. 
643. 

Minnesota.— Laws  1881,  chapter  148,  Amend,  chap.  30,  Laws  1889. 
As  to  receivers  under  the  insolvency  act  of  this  state,  see  Hyde  v. 
Weitzner,  45  Minn.  35,  47  N.  W.  311  (assignee  for  benefit  of  cred- 
itors treated  as  an  officer  of  the  court,  and  receiver  refused);  Citizens' 
Nat.  Bank  v.  Minge,  49  Minn.  454,  52  N.  W.  44  (creditor's  claim  need 
Hot  be  due,  to  qualify  him  to  institute  proceedings  for  a  receiver) ; 
Rollins  V.  Rice,  60  Minn.  358,  62  N.  W.  325. 

Rhode  Island.— Pub.  Laws,  c.  723,  §  2.  Receiver  on  petition  of 
•reditors  of  insolvent  who  has  made  an  assignment  giving  illegal 
preferences:  See  Bank  of  America,  Petitioner,  13  R.  I.  176. 

South  Carolina. — Statute  authorizing  creditors  without  judgment 
io  attack  a  voluntary  assignment  giving  preference  to  creditors. 
It  is  error  to  appoint  a  receiver  when  it  is  not  alleged  that  there 
was  any  danger  of  loss  or  injury  to  the  property  during  litigation: 
Felz«r  T.  Hughes,  27  S.  C.  408,  3  S.  E.  781. 


aOt  BECEIVERS;  ANNUITIES;  EEMAINDERS.     |§  114,  115 

rescission  of  the  contract  of  purcliase.^^^  It  has  been 
held  improper  to  appoint  a  receiver  pending  an  action 
to  rescind  the  contract  of  sale  at  the  instance  of  the 
vendor,  on  the  mere  ground  of  the  insolvency  of  the 
vendee  in  possession.^^^ 

§  114.  (8)  Receivers  in  Suits  to  Enforce  Payment  of  An- 
nuities.— Receivers  have  sometimes  been  appointed  in 
suits  to  enforce  payment  of  the  arrears  of  annuities 
charged  upon  land  f'^^  but  in  England  this  relief  is  given 
only  when  the  payment  cannot  be  enforced  by  dis- 
tress.2^® 

§  115.  (9)  Receivers  in  Suits  for  the  Protection  of  Re- 
mainder-men.— If  a   life   tenant   neglects   or   refuses   to 

Washington.— Code,  §  302,  allows  a  receiver  at  any  time  for  at- 
tached property  "according  to  tlie  nature  of  the  property  and  the 
exigencies  of  the  case."  A  receiver  is  proper  when  the  property 
"was  of  such  a  character  that  its  value  would  be  diminished  by 
mere  lapse  of  time,  and  that  an  early  sale  thereof  was  desirable": 
State  V.  Superior  Court  of  Whatcom  County,  14  Wash.  324,  44  Pac. 
542. 

243  Pom.  Eq.  Jur.,  §  1334.  The  court,  in  such  a  suit,  has  power  to 
appoint  a  receiver  to  preserve  and  retain  the  purchase  money  until 
the  rights  of  the  parties  are  adjudicated:  Loaiza  v.  Superior  Court, 
85  Cal.  11,  20  Am.  St.  Eep.  197,  9  L.  E.  A.  376,  24  Pac.  707.  A 
receiver  was  appointed  in  an  action  by  the  purchasers  of  a  colliery 
to  set  aside  the  sale  for  fraudulent  representations,  the  ownership 
being  involved  in  great  uncertainty,  and  it  being  of  great  impor- 
tance that  the  colliery  should  be  worked,  and  so  worked  as  to  leave 
as  little  doubt  as  possible  whether  it  was  properly  or  improperly 
worked:  Gibbs  v.  David,  L.  E.  20  Eq.  373. 

244  Jordan  v.  Beal,  51  Ga.  602.  But  in  England,  a  receiver  has 
been  appointed  on  the  application  of  the  vendor  of  a  leasehold,  to 
preserve  the  lease  from  forfeiture  for  nonpayment  of  rent  by  the 
vendee:   Cook  v.  Andrews,   [1897]   1  Ch.  266. 

245  Sollory  v.  Leaver,  L,  E.  9  Eq.  22;  Probasco  v.  Probasco,  30 
N.  J.  Eq.  108;  Abernathy  v.  Orton,  42  Or.  437,  95  Am.  St.  Eep.  774, 
71  Pac.  327;  Pom.  Eq.  Jur.,  §  1334.  Eeceiver  to  enforce  agreement 
to  support  grantor  from  the  proceeds  of  propery  conveyed:  See,  ante, 
i  74,  note  40;  Keister  v.  Cubine,  101  Va.  768,  45  S.  E.  285. 

246  Sollory  v.  Leaver,  supra;  Buxton  v.  Monkhouse,  Coop.  41. 


5   IIG  EQUITABLE     REMEDIES.  204 

keep  down  the  taxes  or  to  make  such  repairs  as  he  is 
legally  bound  to  make,  a  receiver  may  be  appointed,  at 
the  instance  of  the  remainder-man,  to  collect  rents  suf- 
ficient to  discharge  these  liabilities  of  the  life  tenant's 
estate.^^'^  So,  when  a  life  tenant  of  leasehold  premises 
is  allowed  by  the  trustees  of  the  premises  to  receive  the 
rents,  and  the  houses  are  not  kept  in  a  proper  state  of 
repair  to  prevent  a  forfeiture  according  to  the  cove- 
nants of  the  lease,  a  receiver  may  be  appointed  of  the 
rents,  for  the  purpose  of  applying  them  to  the  proper 
repair  of  the  houses. ^^^ 

§  116.  (10)  Appointment  of  Receivers  of  Corporations — 
The  Inherent  Jurisdiction  of  Equity — In  General. — The  in- 
herent jurisdiction  of  a  court  of  equity  to  appoint  re- 
ceivers of  corporations,  in  proper  cases,  independently 
of  statutory  authorization,  has  been  frequently  recog- 
nized.^^^  The  cases  in  which  the  power  is  most  fre- 
quently invoked  are  as  follows  :^^^     1.  In  suits  by  stock- 

247  Cairns  v.  Chabert,  3  Edw.  Ch.  312;  Sage  v.  Gloversville,  43  App. 
Div.  245,  60  N.  Y.  Supp.  791;  Goodman  v.  Malcom,  5  Kan.  App.  285, 
48  Pac.  439;  St.  Paul  Trust  Co.  v.  Mintzer,  65  Minn.  124,  60  Am.  St. 
Kep.  444,  67  N.  W.  657,  32  L.  E.  A.  756  (appointed  at  the  instance 
of  executor  authorized  by  the  express  terms  of  the  will  to  collect 
rents  and  pay  taxes);  Murch  v.  Smith  Mfg.  Co.,  47  N.  J.  Eq.  IQ.*!, 
20  Atl.  213.  But  in  Michigan  such  appointment  is  held  to  be  im- 
proper under  the  method  of  enforcing  the  payment  of  unpaid  taxes 
upon  real  estate  and  foreclosing  liens  in  that  state:  Jenks  v.  Horton, 
90  Mich.   13,  55  N.  W.   372. 

248  In  re  Fowler,  L.  E.  16  Ch.  D.  723. 

249  See  Thompson  v.  Greeley,  107  Mo.  577,  criticising  the  state- 
ments on  this  subject  of  certain  test-books  on  receivers;  Ford  v. 
Kansas  City  etc.  Ey.  Co.,  52  Mo.  App.  439;  Matter  of  Louisiana  Sav- 
ings Bank,  35  La.  Ann.  196,  criticising  Baker  v.  Louisiana  etc.  R. 
E.  Co.,  34  La.  Ann.  754,  where  a  sweeping  denial  of  the  existence 
of  the  jurisdiction,  except  in  cases  of  extreme  necessity,  was  made. 

250  The  supreme  court  of  Louisiana  says  of  the  practice  in  that 
Btate  that  it  "had  not  proceeded  further,  and  should  not,  without 
legislative  enactment,  proceed  further,  than  in  making  such  appoint- 
ment in  cases  where   the  parties  litigant   agree   that   it  be   done,   or 


205     APPOINTMENT  OF  RECEIVERS  OF  CORPORATIONS.  §  116 

holders  seeking  a  remedy  for  breaches  of  their  fiduciary 
duty  by  the  directors  or  ofiicers  of  the  corporation;  2. 
After  dissolution,  where  no  means  are  provided  by 
statute  or  otherwise  for  winding  up  the  affairs  of  the 
corporation;  3.  When  the  corporation  has  no  properly 
constituted  governing  body,  or  there  are  such  dissen- 
sions in  its  governing  body  as  to  make  it  impossible 
for  the  corporation  to  carry  on  its  business  with  advan- 
tage; 4.  In  suits  by  judgment  creditors  of  the  corpora- 
tion; 5.  In  suits  for  the  foreclosure  of  mortgages  or 
other  liens  upon  the  corporate  property .^^^ 

Insolvency  of  the  corporation,  alone,  does  not  war- 
rant the  appointment  of  a  receiver,^^^  unless  this  has 
been  made  a  ground  by  statute. 

The  object  of  the  appointment  of  a  receiver  of  a  cor- 
poration is  the  preservation  of  its  property  for  the 
benefit  of  persons  interested,  and  not  the  confiscation 
of  the  property.^^^ 

when  it  is  necessary  to  the  execution  of  a  judgment  of  the  court, 
or  in  a  case  where,  the  property  in  controversy  being  under  seizure 
by  a  writ  of  the  court  and  in  custody,  it  is  necessary  as  a  conserva- 
tory process  to  care  for  or  administer  the  same,  or  where  the  prop- 
erty of  a  corporation  is  abandoned,  or  there  are  no  persons  author- 
ized to  take  charge  of  and  conduct  its  affairs,  or  where  it  is  done 
in  aid  of  proceedings  pending  before  the  court  for  the  liquidation  of 
the  affairs  of  a  corporation,  and  rendered  necessary  for  the  preserva- 
tion of  the  interests  of  all  concerned":  In  ro  Moss  Cigar  Co.,  50  La. 
Ann.  789,  23  South.  544. 

251  That  it  is  improper  to  appoint  a  receiver  merely  for  the  pur- 
pose of  representing  the  corporation  in  litigation,  see  Hutchinson  v. 
American  Palace-Car  Co.,  104  Fed.  182. 

25  2  McGeorge  v.  Big  Stone  Gap  Imp.  Co.,  57  Fed.  262;  Lawrence 
Iron  Works  Co.  v.  Rockbridge  Co.,  47  Fed.  755;  Murray  v.  Superior 
Court,  129  Cal.  628,  62  Pac.  191.  See,  also,  Falmouth  Bank  v.  Cape 
Cod  Ship  Canal  Co.,  166  Mass.  550,  44  N.  E.  617;  Pond  v.  Framingham 
&  Lowell  R.  Co.,  130  Mass.  194. 

253  See  Havemeyer  v.  Superior  Court,  84  Cal.  327,  18  Am.  St.  Rep. 
192,  24  Pac.  121.  This  principle  seems  clearly  to  have  been  disre- 
garded in  an  Indiana  case  (Columbia  Athletic  Club  v.  State,  143 
Ind.  98,  52  Am.  St.  Rep.  407,  40  N.  E,  914,  28  L.  E.  A.  727),  where  a 


§   117  EQUITABLE     EEMEDIES.  206 

§  117.  Receivers  of  Corporations  Cautiously  Appointed. — 
The  reasons  for  the  oft-asserted  reluctance  of  the  court 
to  assume  the  responsibilities  involved  in  the  appoint- 
ment of  receivers  of  corporations  are  well  stated  in  the 
following  extracts:  "As  a  rule  of  equity  practice,  the 
courts  are  very  reluctant  to  appoint  receivers  [of  the 
property  of  corporations],  upon  the  idea  that  it  is  a 
practical  displacement  of  the  board  of  directors.  It 
is  an  assumption  of  the  function  of  the  directors.  It 
displaces  the  board  of  managers  placed  there  by  the 
stockholders,  who  sustain  the  relation  of  trustees  for 
the  stockholders,  trustees  for  the  corporation,  and  trus- 
tees for  its  creditors;  and  before  the  court  will  take 
charge  of  the  corporation  and  thus  displace  its  chosen 
directors  and  managers,  it  ought  to  have  the  clearest 
evidence  of  the  absolute  necessity  for  such  extraor<li- 
nary  action  for  the  protection  of  the  creditors,  stock- 
holders, and  all  parties  concerned."-^*  "It  is  no  slight 
matter  for  a  court  of  chancery  to  lay  its  hand  upon 
large  business  enterprises,  take  them  out  of  the  con- 
trol of  capacity  and  experience,  and  charge  them  with 
expenses  and  commissions.  It  should  only  be  done 
when  the  court  can  point  to  the  specific  allegation  or 

receiver  was  appointed  to  render  more  effectual  an  injunction  re- 
straining the  continuance  of  a  nuisance — viz.,  giving  exhibitions  of 
prize-fighting — ^by  a  corporation.  The  dissenting  opinion  of  Hack- 
ney, J.,  points  out  that  while  the  injunction  was  properly  issued, 
the  appointment  of  a  receiver  for  the  purpose  merely  of  staying 
the  commission  of  crime  is  entirely  without  precedent;  and  that  the 
object  sought  might  have  been  reached  by  enlarging  the  scope  of  the 
injunction.  However,  the  fact  that  the  relief  was  based,  in  part, 
on  the  broad  terms  of  the  Indiana  statute  (Eev.  Stats.  1894,  §  1236; 
Kev.  Stats.  1881,  §  1222)  authorizing  a  receivership  when  "in 
the  discretion  of  the  court,  it  may  be  necessary  to  secure  ample  justice 
to  the  parties,"  probably  destroys  whatever  general  value  as  a 
precedent  this  case  might  possess. 

254  Consolidated  Tank  Line  Co.  v.  Consolidated  Varnish  Co.,  43  Fed. 
204. 


207     APPOINTMENT  OF  RECEIVERS  OF  CORPORATIONS.  S  117 

allegations,  sustained  by  credible    evidence,  that    will 
justify  such  action."^^^ 

The  relief  cannot  be  granted  on  the  strength  of  mere 
general  averments  of  fraud,  when  that  is  the  ground 

255  Young  V.  Eutan,  69  111,  App.  513.     "Courts  proceed  with   ex- 
treme caution  in  the  appointment  of  receivers  to  take  the  propertj 
of  a  corporation  out  of  the  control  of  its  officers,  and  are  much  more 
readily  moved  to,  by  proper   orders,  restrain  the   doing  of  improper 
acts,    and    compel    the    recognition    of    undoubted    rights":    Original 
Vienna  Bakery  etc.  Co.  v.  Heissler,  50  111.  App.  406.     Before  a  court 
"will  take  the  property  and  business  of  a  liquidating  bank  from  the 
control  of  its  directors  into  its  own  hands,  on  the  application  of  a 
stockholder,  it  must  appear  that  the  danger  of  loss  or  injury  to  tlie 
rights  of  the  plaintiff  is  clearly  proved,  and  the  necessity  and  right 
of  appointment  of  a  receiver  free  from  reasonable  doubt":  Watkins 
V,  National  Bank,  51  Kan.  254,  32  Pac.  914.     "The  power  is  a  dis- 
cretionary one,  to  be  exercised  with  great  circumspection,  and  only 
in  cases  where  there  is  fraud  or  spoliation,  or  imminent  danger  of 
the  loss  of  the  property,  if  the  immediate  possession  should  not  be 
taken  by  the  court;   and  these  facts  must   be   clearly  proved.     But, 
where  these  conditions  have  been  fully  met,  courts  do  not  hesitate  to 
appoint  receivers  over  the  property  of  corporations,  for  the  benefit 
of   all   concerned   during  the   controversy":    Davis   v.   United   States 
Electric  etc.  Co.,  77  Md,  35,  25  Atl.  982;  Steinberger  v.  Independent 
Sav.  Assn.,  84  Md.  625,  36  Atl.  439.     See,  also,  Thompson  v.  Greeley, 
107  Mo.  577,  17  S.  W.  962;  People's  Investment  Co.  v.  Crawford  (Tex. 
Civ.  App.),  45  S,  W.  738.     "Cessation  of  business,  alone,  does  not 
make  a  fit  case  for  the  appointment  of  a  receiver  of  the  remaining 
assets  of  the  company;  it  must  be  shown,  in  addition,  that  the  offi- 
cers have  been  guilty  of  mismanagement  of  its  affairs,  or  that  there 
exists  some  need  to  preserve  the  property,  through  a  receivership,  for 
the  benefit  of  the  creditors  and  stockholders":  Clark  v.  National  Lin- 
seed Oil  Co.,  105  Fed.  787,  792,  45  C.  C.  A.  53.     "Undoubtedly,  there 
are  cases  in  which  a  court  of  equity  may,  through  its  receiver,  take 
possession  and  control  of  the  business  of  corporations  and  individuals. 
But  it  is  a  jurisdiction  to  be  sparingly  exercised.     None  of  the  pre- 
rogatives  of   a   court   of   equity   have   been   pushed   to   such   extreme 
limits  as  this,  and  there  is  none  so  likely  to  lead  to  abuses.     It   is 
not  the  province  of  a  court  of  equity  to  take  possession  of  the  prop- 
erty, and  conduct  the  business  of  corporations  or  individuals,  except 
where  the  exercise  of  such  extraordinary  jurisdiction  is  indispensably 
necessary  to  save  or  protect  some  clear  right  of  a  suitor,  which  would 
otherwise  be  lost  or  greatly  endangered,  and  which  cannot  oe  saved 
or  protected  by  any  other  action  or  mode  of  proceeding":  Overton  v. 
Memphis  etc.  E.  R.  Co.,  10  Fed.  866,  3  McCrary,  436. 


5  118  EQUITABLE     REMEDIES.  208 

on  which  the  relief  is  asked.  The  conduct  and  facts 
from  which  the  conclusion  is  deduced  must  be  averred, 
EK)  that  issue  can  be  formed  on  the  averments.^^® 

§  118.  A  Receiver  is  an  Ancillary  Remedy;  not  Appointed 
on  the  Petition  of  the  Corporation. — Unless  authorized  by 
statute,  there  is  no  such  thing  as  an  action  brought 
distinctively  for  the  mere  appointment  of  a  receiver; 
to  justify  the  appointment  it  is  essential  that  some 
proper  final  relief  in  equity  be  asked  for  in  the  bill 
which  will  justify  the  court  in  proceeding  with  the 
case.2^'^  It  follows  that  it  is  error  for  the  court  to 
appoint  a  receiver  of  a  corporation  on  its  own  peti- 
tion, alleging  its  insolvency  ;2^^  and  it  has  been  held 
that  such  a  proceeding  is  void  for  want  of  jurisdic- 
tion.2=9 

25  6  Fort  Payne  Furnace  Co.  t.  Fort  Payne  Coal  etc.  Co.,  96  Ala. 
472,  38  Am.  St.  Eep.  109,  11  South.  439. 

257  Hutchinson  v.  American  Palace  Car  Co.,  104  Fed.  182;  Mur- 
ray V.  Superior  Court,  129  Cal.  628,  62  Pac.  191;  In  re  Atlas  Iron  Con- 
struction Co.,  2  N.  Y.  Ann.  Cas.  124,  38  N.  Y.  Supp.  172;  Mann  v. 
German-American   Inv.    Co.    (Neb.),    97   N.    W.    600. 

258  State  V.  Ross,  122  Mo.  435,  25  S.  W.  947,  23  L.  E.  A.  534; 
Kimball  v.  Gcodburn,  32  Mich.  11;  Hugh  v.  McRae,  Chase  Dec.  466; 
Jones  V.  Bank  of  Leadville,  10  Colo.  464,  17  Pac.  272;  Mcllhenny  v. 
Binz,  80  Tex.  1,  26  Am.  St.  Rep.  705,  13  S.  W.  655;  In  re  Moss  Cigar 
Co.,  50  La.  Ann.  789,  23  South.  544.  The  notorious  "Wabash"  case 
("Wabash  etc.  R.  Co.  v.  Central  Trust  Co.,  22  Fed.  272),  contra,  appears 
to  have  been  thoroughly  discredited,  and  does  not  appear  to  have  been 
followed,  unless  Petition  of  Kittanning  Ins.  Co.,  146  Pa.  St.  102,  23 
Atl.  336,  the  report  of  which  is  scarcely  intelligible,  is  to  be  taken 
as  announcing  the  same  doctrine.  See  the  caustic  criticism  of  the 
Wabash  case  in  State  v.  Ross,  supra,  and  in  an  article  by  Gov.  D.  H. 
Chamberlain,  entitled  "New  Fashioned  Receiverships,"  in  Harvard 
Law  Review.  The  attempt  (in  Central  Trust  Co.  v.  Wabash,  St.  L.  & 
P.  Ry.  Co.,  29  Fed.  618)  to  find  support  for  its  doctrine  in  subsequent 
dicta  of  the  supreme  court  of  the  United  States,  and  in  the  previous 
•ase  of  Brassey  v.  Railroad  Co.,  19  Fed.  663  (a  suit  by  a  bondholder)^ 
is  thoroughly  exposed  in  the  opinion  of  Brace,  J.,  in  State  v.  Ross, 
gupra. 

259  State  V.  Boss,  supra;  contra,  that  the  appointment,  although  er- 


209     APPOINTMENT  OF  KECEIVEES  OF  CORPOKATIONa  S  119 

§  119.  Suit  for  Dissolution  and  Receiver;  No  Inherent 
Jurisdiction. — It  is  well  settled,  with  scarcely  a  dissent- 
ing voice,  that  in  the  absence  of  express  statutory  au- 
thority, a  court  of  equity  has  no  power  to  dissolve  a 
corporation,  or  to  wind  up  its  affairs  and  sequestrate 
its  property.^*'^  A  few  exceptions  have,  however,  been 
admitted  to  this  rule;  as,  where  the  corporation  had 

roncous,  does  not  render  the  proceedings  of  the  court  consequent 
thereupon  void,  so  as  to  be  assailable  in  a  collateral  proceeding,  see 
Mcllhenny  v.  Binz,  80  Tex.  1,  26  Am.  St.  Kep.  705,  13  S.  W.  655. 

260  Kepublica-n  Mountain  Silver  Mines  v.  Brown,  7  C.  C.  A.  412, 
24  L.  E.  A.  776,  58  Fed.  644,  648;  Murray  v.  Superior  Court,  129  Gal. 
628,  62  Pac.  191;  La  Societe  Francaise  v.  District  Court  ("French 
Bank  Case  "),53  Cal.  495;  People  v.  District  Court  of  City  and  County 
of  Denver  (Colo.),  SO  Pac.  909;  People  v.  Weigley,  155  111.  491,  40  N.  E. 
300;  Wheeler  v.  Pullman  Iron  etc.  Co.,  143  111.  197,  32  N.  E,  420,  17 
L.  R.  A.  818;  Eaker  v.  Backus 's  Admrs.,  32  111.  79;  Belmont  v.  Erie 
Ey.  Co.,  52  Barb.  (N.  Y.)  637;  Howe  v.  Duel,  43  Barb.  505;  Bangs  v. 
Mcintosh,  23  Barb.  600;  In  re  The  Mart,  22  Abb.  N.  C.  227,  5  N.  Y. 
Supp.  82;  Davis  v.  Flagstaff  etc.  Min.  Co.,  2  Utah,  74,  94;  Mason 
V.  Equitable  Lodge  Supreme  Court,  77  Md.  483,  39  Am.  St.  Eep. 
433,  27  Atl.  171;  Vila  v.  Grand  Island  Electric  L.  I.  &  C.  S.  Co. 
(Neb.),  94  N.  W.  136;  Wallace  v.  Pierce-Wallace  Pub.  Co.,  101  Iowa, 
313,  322,  63  Am.  St.  Eep.  389,  70  N.  W.  216,  38  L.  E.  A.  122;  French 
V.  Gifford,  30  Iowa,  153;  People's  Inv.  Co.  v.  Crawford  (Tex.  Civ. 
App.),  45  S.  W.  738.  Such  authority  is  not  to  be  found  in  a  gen- 
eial  statute,  not  relating  to  any  specific  class  of  cases,  such  as 
Code  of  Iowa,  §  2903,  declaring  that  a  receiver  may  be  appointed 
pendente  lite  "on  the  petition  of  either  party  to  a  civil  action  or 
proceeding,  wherein  he  shows  that  he  has  a  probable  right  to,  or  in- 
terest in,  any  property  which  is  the  subject  of  the  controversy,  and 
that  such  property  or  its  rents  or  profits  are  in  danger  of  being  lost 
or  materially  injured  or  impaired,"  if  the  court  is  "satisfied  that 
the  interests  of  one  or  both  parties  will  be  thereby  promoted,  and 
the  substantial  rights  of  neither  unduly  infringed":  Wallace  v.  i^iercc- 
Wallace  Pub.  Co.,  and  French  v.  Gifford,  supra.  This  section  does 
not  warrant  the  placing  of  the  property  of  the  corporation  in  the 
hands  of  a  receiver,  when  that  practically  accomplishes  the  same 
purpose  as  a  dissolution:  Id.  That  the  president  of  a  corporation  has 
no  power,  without  the  authority  of  the  directors  or  stockholders,  to 
consent  to  the  appointment  of  a  receiver  to  wind  up  the  affairs  of 
a  corporation,  see  Walters  v.  Anglo-American  Mort.  &  T.  Co.,  50  Fed. 
316. 

Equitable  Eemedies,  Vol.  I — 14 


I  119  EQUITABLE     EEMEDIES.  210 

utterly  failed  of  its  purpose  because  of  fraudulent  mis- 
management and  misappropriation  of  its  funds  by  the 
president  and  manager,  who  owned  a  majority  of  its 
stock,  a  receiver  was  appointed  to  wind  up  its  affairs 
at  the  suit  of  a  minority  stockholder  ;2^^  and  it  has  been 
held,  even  in  New  York,  that  a  court  of  equity  has  in- 
herent power  to  appoint  a  receiver  on  the  application 
of  a  stockholder  for  the  purpose  of  the  equitable  dis- 
tribution of  the  assets  of  an  insolvent  corporation,  with- 
out regard  to  the  statutory  provisions  for  the  dissolu- 

261  In  the  well-considered  case  of  Miner  v.  Belle  Isle  Ice  Co.,  93 
Mich.  97,  53  N.  W.  218.  The  general  rule  is  recognized,  but  it  is 
pointed  out  that  a  strict  adherence  to  the  rule,  or  the  attempt  to  apply 
any  other  remedy  than  a  winding  up  of  the  business  of  the  corpora- 
tion through  the  agency  of  a  receiver  would  amount  to  a  denial  of 
justice,  and  violate  the  fundamental  principle  of  equity  that  '•'it 
is  the  duty  of  the  court  to  adapt  its  practice  and  course  of  proceed- 
ing to  the  existing  state  of  society."  It  appeared  that  for  a  number 
of  years  the  defendant  Lorman  had  controlled  the  corporation  for  his 
own  interest  and  profit,  and  had  appropriated  all  the  profits  of  the 
business.  The  court  says,  after  a  discussion  of  the  authorities:  "The 
present  case  furnishes  an  instance  of  gross  abuse  of  trust.  Must  the 
cestui  que  trust  be  committed  to  the -domination  of  a  trustee  who  for 
seven  years  continued  to  violate  the  trust?  ....  The  trustee  has  so 
far  absorbed  all  returns.  What  is  the  outlook  for  the  future?  This 
court,  in  view  of  the  past,  can  give  no  assurances.  It  can  make  no 
order  that  can  prevent  some  other  mode  of  bleeding  this  corporation, 
if  it  is  allowed  to  continue.  If  Lorman  be  removed,  who  shall  take 
his  place?     He  has  the  absolute  power  to  determine.     Once  deposed 

he  may  elect  a  dummy  to  fill  his  place This  corporation  has 

utterly  failed  of  its  purpose,  not  because  of  matters  beyond  its  con- 
trol, but  because  of  fraudulent  mismanagement  and  misappropriation 
of  its  funds.  Complainant  has  a  right  to  insist  that  it  shall  not  con- 
tinue as  a  cloak  for  a  fraud  upon  him,  and  shall  not  longer  retain 
his  capital  to  be  used  for  the  sole  advantage  of  the  owner  of  a  ma- 
jority of  the  stock,  and  a  court  of  equity  will  not  so  far  tolerate  such 
a  manifest  violation  of  the  rules  of  natural  justice  as  to  deny  him 
the  relief  to  which  his  situation  entitles  him.  I  think  a  court  of 
equity,  under  the  circumstances  of  this  case,  in  the  exercise  of  its 
general  equity,  jurisdiction,  has  the  power  to  grant  to  this  complainant 
ample  relief,  even  to  the  dissolution  of  the  trust  relations.  Complain- 
ant is  therefore  entitled  to  the  relief  prayed.  A  receiver  will  be 
appointed,  and  the  affairs  of  this  corporation  wound  up." 


211     APPOINTMENT  OF  KECEIVEES  OF  CORPORATIONS.  §  Hit 

tion  of  corporations,  where  the  directors  refuse  to  in- 
stitute statutory  proceedings  for  a  voluntary  dissolu- 
tion, and  there  is  danger  of  the  assets  being  absorbed 
by  judgments  that  will  be  recovered,  so  as  to  render  an 
application  to  the  attorney-general  useless.^^^  j^  ^  re- 
cent case  in  the  United  States  circuit  court  for  the 
eastern  district  of  North  Carolina  the  court  even  went 
to  the  length  of  appointing  a  receiver  for  the  purpose 
of  the  dissolution  of  a  solvent  and  prosperous  corpora- 
tion, and  the  sale  of  its  property,  for  the  sole  reason, 
apparently,  that  this  action  was  desired  by  a  majority 
of  the  stockholders,  and  that  a  minority  stockholder 
was  threatening  to  procure  the  passage  of  a  bill  by  the 
state  legislature  forfeiting  the  charter  of  the  corpora- 
tion.263 

262  Porter  v.  Industrial  Information  Co.,  25  N.  Y.  Supp.  328,  5 
Misc.  Rep.  263.  The  court  says:  "Whenever,  in  the  course  of  events, 
it  proves  impossible  to  attain  the  real  objects  for  which  a  corpora- 
tion was  formed,  or  when  the  failure  of  the  company  has  become  in- 
evitable, it  is  the  duty  of  the  company's  agents  to  put  an  end  to  its 
operations,  and  to  wind  up  its  affairs;  and  if  the  majority  should 
attempt  to  continue  its  operations,  in  violation  of  its  charter,  or 
should  refuse  to  make  a  distribution  of  the  assets,  any  shareholder 
feeling  aggrieved  will  be  entitled  to  the  assistance  of  the  courts:  Mor. 
Corp.,  §  284;  Merchants'  etc.  Line  v.  Wagoner,  71  Ala.  581;  Cramer 
V.  Bird,  L.  R.  6  Eq.  143." 

263  Arents  v.  Blackwell's  Durham  Tobacco  Co.,  101  Fed.  338, 
(Simonton,  J.).  This  decision,  surely  one  of  the  most  arbitrary  ever 
rendered  by  a  federal  court,  even  in  that  circuit,  is  not  cited  here, 
it  is  hardly  necessary  to  say,  for  its  value  as  a  precedent.  No  war- 
rant whatever  was  found,  or  sought,  by  the  court,  in  any  legislation 
of  the  state  of  North  Carolina,  and  the  court  expressly  recognized  the 
general  rule  forbidding  the  interference  of  a  court  of  equity  in  the 
internal  management  of  the  affairs  of  a  corporation,  and  the  absence 
of  any  jurisdiction  in  such  a  court  to  dissolve  a  corporation,  to  wind 
up  its  affairs  and  in  that  connection  to  appoint  a  receiver.  The  court 
excuses  its  action  with  the  vague  statement  that  "a  recognized 
ground  of  relief  in  equity  is,  when  the  affairs  of  the  corporation  are 
•not  satisfactory,  when  it  is  in  the  midst  of  or  threatened  with  dis- 
aster, when  further  prosecution  of  its  business  will  lead  to  loss  and 
insolvency."     The    authorities    cited,    of    course,    establish    no    such 


I  120  EQUITABLE     REMEDIES.  213 

§  120.  Stockholders'  Suit  for  Breach  of  Fiduciary  Duty 
by  Directors. — Cases  are  to  be  found  which  assert  that 
courts  of  equity,  by  virtue  of  their  general  equitable 
jurisdiction,  will  not  appoint  a  receiver  of  a  corpora- 
tion, and  assume  control  and  management  of  its  af- 
fairs, at  the  suit  of  a  stockholder  alleging  fraud,  mis- 
management, and  collusion  on  the  part  of  the  corporate 
authorities,  or  ultra  vires  acts  of  the  directors  or  of  the 
corporation  itself.^^*  The  denial  of  the  power  to  grant 
the  relief  in  such  cases  is  based  on  one  or  both  of  two 
grounds:  First,  that  such  relief,  in  effect,  results  in 
a  dissolution  of  the  corporation,  and  the  court  should 
refuse  to  accomplish  indirectly  that  which  it  has  no 
power  to  do  directly  ;^^'^  second,  that  an  injunction, 
addressed  to  the  specific  wrongs  charged,  affords  a 
sufiQcient  remedy.^^®  But,  notwithstanding  many  dicta, 
and  the  assertions  of  the  older  text-books,  the  current 
of  recent  authority  appears  to  be  strongly  in  favor  of 
the  inherent  power  of  the  court,  in  a  proper  case,  to 
displace  the  management  of  guilty  or  negligent  offi- 

ground  for  the  dissolution  of  corporations  by  courts  of  equity,  but 
merely  concern  the  right  of  the  majority  stockholders  themselves  to 
put  an  end  to  the  business  of  the  corporation  under  such  circum- 
stances. 

264  People's  Investment  Co.  v.  Crawford  (Tex.  Civ.  App.),  45  S.  W. 
738;  Empire  Hotel  Co.  v.  Main,  98  Ga.  176,  25  S.  E.  413;  Fischer  v. 
Superior  Court,  110  Cal.  129,  42  Pac.  561;  Neall  v.  Hill,  16  Cal.  145, 
76  Am.  Dec.  508;  Eobison  v.  Cleveland  City  R.  Co.,  7  Ohio  Dec.  .312; 
People  V.  Judge  of  St.  Clair  Circuit,  31  Mich.  456;  Mason  v.  Supreme 
Court  of  Equitable  League,  77  Md.  483,  39  Am.  St.  Rep.  433,  27  Atl. 
171;  Goodman  v.  Jedidjah  Lodge,  67  Md.  117,  9  Atl.  13,  13  Atl.  627; 
Waterbury  v.  Merchants'  Union  Express  Co.,  50  Barb.  157.  See,  also, 
High  on  Receivers,  §  288. 

265  Fischer  v.  Superior  Court,  110  Cal.  129,  42  Pac.  61. 

266  People's  Inv.  Co.  v.  Crawford  (Tex.  Civ.  App.),  45  S.  W.  738; 
Empire  Hotel  Co.  v.  Main,  98  Ga.  176,  25  S.  E.  413;  Waterbury  v. 
Merchants'  Union  Express  Co.,  50  Barb.  157.  And  see  Laurel  Springs 
Land  Co.  v.  Fougeray,  50  N.  J.  Eq.  756,  26  Atl.  886. 


213     APPOINTMENT  OF  KECEIVEKS  OF  COEPORATIONS.  §  121 

cials  by  the  instrumentality  of  its  receiver.^^'^  It  lias 
been  frequently  pointed  out  that  the  appointment  of  a 
receiver  in  cases  of  this  character  does  not  necessarily 
result  in  the  dissolution  or  extinction  of  the  corpora- 
tion. "The  property  and  assets  of  the  corporation, 
which  are  being  dissipated  and  fraudulently  absorbed, 
will  be  preserved  and  rightfully  applied  under  the  su- 
pervision of  the  court,  and  may  be  restored  to  the  offi- 
cers of  the  corporation,  when  there  has  been  a  change 
of  officers,  or  when  it  is  deemed  prudent  and  safe  to 
restore  the  property  and  affairs  of  the  corporation  to 
its  duly  constituted  ofiicers."^^® 

§  121.  Same;  Power,  When  not  Exercised. — In  a  suit 
by  a  stockholder,  a  receiver  will  not  be  appointed  to 
take  the  property  out  of  the  hands  of  the  managers,  ex- 

267  See  Gluck  &  Becker  on  Eec.  of  Corp.,  §  9,  and  cases  cited; 
Towle  V.  American  Bldg.  etc.  Soc,  60  Fed.  131;  Aiken  v.  Colorado 
Riv.  Imp.  Co.,  72  Fed.  591;  Wayne  Pike  Co.  v.  Hammond,  129  Ind. 
368,  27  N.  E.  487;  Supreme  Sitting  I.  H,  v.  Baker,  134  Ind.  293,  33  N, 
E.  1128,  20  L.  R.  A.  210;  In  re  Lewis,  52  Kan.  660,  35  Pac.  287;  Davis 
V.  United  States  Electrical  etc.  Co.,  77  Md.  35,  25  Atl.  982;  Miner  v. 
Belle  Isle  Ice  Co.,  93  Mich.  97,  53  N.  W.  218,  17  L.  R.  A.  412;  State 
V.  Second  Judicial  District  Court,  15  Mont.  324,  48  Am.  St.  Rep.  682, 
39  Pac.  316,  27  L.  R.  A.  392;  Ponca  Mill  Co.  v.  Mikesell,  55  Neb. 
98,  75  N.  W.  46;  Porter  v.  Industrial  Information  Co.,  25  N.  Y.  Supp, 
328,  5  Misc.  Rep,  262;  Line  v.  Carlisle  Mfg.  Co.,  5  Pa.  Dist.  R.  642; 
Cameron  v.  Groveland  Imp.  Co.,  20  Wash.  169,  72  Am.  St.  Rep.  26, 
54  Pac.  1128;  Haywood  v.  Lincoln  Lumber  Co.,  64  Wis.  639,  26  N. 
W.  184.  In  a  few  of  these  cases  the  jurisdiction  was  aided  by  the 
terms  of  some  general  statute;  but  in  all  of  them  the  inherent  power 
of   courts   of   equity   was   recognized. 

268  In  re  Lewis,  supta;  Supreme  Sitting  of  the  Order  of  Iron  Hall 
V.  Baker,  134  Ind.  293,  33  N.  E.  1128,  20  L.  R.  A.  210;  State  v.  Sec- 
ond Judicial  District  Court,  15  Mont.  324,  48  Am.  St.  Rep.  682,  27  L. 
E.  A.  392,  39  Pac.  316;  Gibbs  v.  Morgan  (Idaho),  72  Pac.  733,  and 
cases  cited.  That  the  guilty  officers  are  necessary  parties  to  the  suit, 
see  Edwards  v.  Bay  State  Gas  Co.,  91  Fed.  942.  That  the  allegations 
of  fraud  must  be  specific,  see  Wheeler  v.  Pullman  Iron  etc.  Co.,  43  HI. 
App.  626;  Baker  v.  Backus 's  Admr.,  32  111.  79. 


5  121  EQUITABLE     REMEDIES.  214 

cept  as  a  last  resort,  and  when  it  is  considered  abso- 
lutely necessary  for  the  preservation  of  the  trust 
fund.^^^  So,  when  it  appears  that  the  appointment  of 
a  receiver,  with  the  expenses  incident  thereto,  would 
probably  render  the  corporation  insolvent,  the  court 
will  endeavor  to  give  relief  by  enjoining  the  managers 
from  the  further  execution  of  contracts  resulting  in  the 
diversion  of  corporate  funds,  and  from  committing 
other  acts  of  mismanagement.^^"  Moreover,  the  princi- 
ple must  be  borne  in  mind  that  a  receivership  is  a 
preventive,  not  a  punitive,  measure.  "Courts  do  not  ap- 
point receivers  as  a  punishment  for  past  dereliction, 
nor  because  of  past  dangers.  Receivers  are  appointed 
because  of  present  conditions,  and  well-founded  ap- 
prehension as  to  the  future."^^^  The  complaining  stock- 
holder must,  of  course,  show  that  his  fears  are  well 
grounded.^^^    He  must  himself  be  free  from  any  parti ci- 

269  United  Securities  Co.  v.  Louisiana  Electric  L,  Co.,  68  Fed.  673. 
See,  also,  Bridgeport  Development  Co.  v.  Tritsch,  110  Ala.  274,  20 
South.  16;  Laurel  Springs  Land  Co.  v.  Fougeray,  50  N.  J.  Eq.  756, 
26  Atl.  886;  Miller  v.  Kitchen  (Neb.),  103  N.  W.  297. 

270  United  Securities  Co.  v.  Louisiana  Electric  L.  Co.,  68  Fed.  673. 

271  Original  "Vienna  Bak.  etc.  Co.  v.  Heissler,  50  111.  App.  406. 
"Past  conduct  and  past  conditions  may  be  taken  into  consideration 
in  determining  what  the  present  situation  is  and  the  future  will  be, 
but  a  receiver  will  not  be  appointed  because  of  things  done  or  at- 
tempted at  a  past  time,  when  the  present  situation  and  the  prospects 
for  the  future  are  not  such  as  to  warrant  taking  the  control  of  the 
property  out  of  the  hands  of  its  owners":  Id.  See,  also,  Marcuse  v. 
Gullett  Gin  Mfg.  Co.,  52  La.  Ann.  1383,  27  South.  846;  New  Albany  ' 
Waterworks  v.  Louisville  Banking  Co.,  122  Fed.  776,'  58  C.  C.  A.  576 
(one  unauthorized  act  not  ground  for  appointment;  "it  cannot  be 
presumed  that  they  will  mismanage  or  act  otherwise  than  in  con- 
formity with  the  order"  setting  aside  an  unauthorized  act). 

272  So,  the  fears  of  a  complainant  that  a  suit  brought  by  the 
COTporation  against  an  officer  will  not  be  diligently  prosecuted,  owing 
to  the  relation  of  the  parties,  will  not  warrant  the  appointment  of 
a  receiver  to  take  charge  of  the  suit,  no  laches  on  the  part  of  the  cor- 
poration being  shown:  Griffing  v.  Griffing  Iron  Co.,  96  Fed.  577.  That 
the  president  of  a  corporation  is  in  a  position  where  he  may  betray 


215     APPOINTMENT  OF  KECEIVEES  OF  COEPORATIONS.  §  121 

pation  in  the  breaches  of  trust  on  the  part  of  the  ministe- 
rial officers  of  the  corporation.^'^s  gjg  right  to  the  relief 
must  be  based  on  something  more  than  mere  irregulari- 
ties in  levying  of  assessments,^'^*  or  than  a  denial  of 
the  right  of  the  stockholders  to  inspect  the  corporate 
books,  as  such  right  may,  if  necessary,  be  enforced  by 
other  and  appropriate  orders  ;^^^  or  than  a  refusal  by 
the  directors,  not  shown  to  be  made  with  corrupt  mo- 
tive, to  permit  a  pledgee  of  stock  to  vote  it.^^®  The 
appointment  of  a  receiver  of  a  solvent  corporation  on 
tlio  application  of  a  minority  stockholder  is  a  very 
drastic  remedy,  which  can  be  justified  only  in  a  very 
strong  case.^'' 

its  interests  will  not  justify  a  receivership,  when  there  is  no  evidence 
to  justify  the  probability  that  he  will  betray  them:  Young  v.  Rutan, 
69  111.  App.  513.  The  appointment  of  a  receiver  for  a  corporation 
will  not  be  made,  the  bill  containing  no  allegations  of  mismanage- 
ment, improper  application  of  funds,  or  other  acts  of  corporate  mal- 
administration, merely  on  the  general  allegation  of  the  shareholders 
socking  the  appointment  that  they  apprehend  exposure  in  the  future, 
if  the  corporation  is  not  wound  up,  to  liabilities  not  contemplated 
when  they  became  shareholders:  Mulqueeney  v.  Shaw,  50  La.  Ann. 
1060,  23  South.  915. 

273  Hyde  Park  Gas  Co.  v.  Kerber,  5  HI.  App.  132. 

274  Hardee  v.  Sunset  Oil  Co.,  56  Fed.  51.  In  this  case  the  di- 
rectors of  a  corporation  levied  an  assessment  on  its  stock,  and,  on 
failure  to  pay  the  same,  advertised  for  sale  only  the  stock  of  one 
who  held  nearly  one-third  of  the  entire  stock,  although  other  stock- 
holders were  also  delinquent;  it  appearing,  however,  that  the  other 
stockholders  had  promised  to  pay.  At  a  meeting  of  the  directors  at 
which  only  the  president,  secretary  and  treasurer  were  present,  they 
voted  themselves  salaries,  which,  however,  they  never  collected.  It 
was  shown  that  no  actual  fraud  was  intended.  Held,  that  the  ir- 
regularities are  not  sufficient  to  justify  appointing  a  receiver  for 
the   corporation. 

275  Original  Vienna  Bak.  etc.  Co.  v.  Heissler,  50  111.  App.  406; 
Alabama  Coal  &  Coke  Co.  v.  Shackelford,  137  Ala.  224,  97  Am.  St. 
Eep.  23,  34  South.  833. 

276  Thalmann  v.  Hoffman  House,  27  Misc.  Eep.  140,  58  N.  Y.  Supp. 
227. 

277  Eothwell  V.  Eobinson,  44  Minn.  538,  47  N.  W.  255;  Continental 
Nat.  B.  &  L.  Assn.  v.  Miller,  44  Fla.  757,  33  South.  404.     In  Eumney  v. 


5  122  EQUITABLE     EEMEDIES.  216 

§  122.  Same;  Power,  When  Exercised. — The  following 
cases  may  serve  to  illustrate  the  circumstances  under 
which  receivers  have  been  appointed  at  the  suit  of  stock- 
holders :  Where  the  officers  of  a  building  and  loan  asso- 
ciation have  so  mismanaged  its  affairs  that  its  aysets 
amount  to  less  than  two-thirds  of  the  capital  paid  in  f^^ 

Detroit  &  M.  Cattle  Co.,  116  Mich.  640,  74  N.  W.  1043,  a  receiver  wag 
refused  on  a  bill  by  the  owner  of  one-eighth  of  the  stock  of  a  cor- 
poration, alleging  that  defendant  controlled  a  majority  of  the  stock, 
loaned  the  profits  in  his  own  name,  and  refused  to  declare  dividends 
until  threatened  with  suit,  and  then  withheld  dividends  coming  to 
complainant;  that  no  meetings  of  the  directors  had  been  held,  nor 
reports  of  the  condition  of  the  company  filed,  as  required  by  law, 
and  that  such  condition  had  not  been  made  known  to  the  stockholders; 
and  that  no  books  of  the  company  were  kept,  except  a  private  mem- 
orandum of  the  defendant,  which  was  inaccessible  to  stockholders. 
It  was  not  shown  that  other  stockholders  were  dissatisfied  with  the 
management,  and  there  was  no  allegation  of  insolvency,  or  that  defend- 
ant was  irresponsible,  and  it  appeared  that  complainant  was  in  con- 
trol of  most  of  the  property  of  the  corporation,  and  that  a  dispute  over 
unsettled  claims  was  the  mainspring  of  the  litigation.  In  Ranger  v. 
Champion  Cotton  Press  Co.,  52  Fed,  609,  the  bill  and  affidavits  charged 
that  the  president  of  the  company  refused  to  account  for  a  large  sum 
of  money  intrusted  to  him  by  the  company  to  be  used  in  the  promo- 
tion of  its  interests,  that  he  had  applied  this  money  to  his  own  use, 
and  obstinately  refused  to  give  the  complainant  an  inspection  of  the 
books  of  the  company,  or  any  information  whatever  of  its  affairs; 
that  he  was  insolvent,  and  since  the  inauguration  of  the  suit  had 
mortgaged  all  his  real  estate,  with  manifest  intent  to  defeat  the 
claim  of  the  company.  The  bill  contained  no  allegation  of  fraudulent 
collusion  on  the  part  of  the  other  stockholders,  but  Intimated  that 
the  president  was  sustained  by  them.  The  solvency  of  the  company 
was  unquestionable.  It  was  held  that  the  allegations  were  insufficient 
to  warrant  the  court  to  appoint  a  receiver  before  answer,  without  the 
consent  of  the  majority  of  the  stockholders.  See,  also,  Laurel  Springs 
Land  Co.  v.  Fougeray,  50  N.  J.  Eq.  756,  26  Atl.  886;  Baker  v.  Backus 'a 
Admr.,  32  111.  79;  Alabama  Coal  &  Coke  Co.  v.  Shackelford,  137  Ala. 

224,  97  Am.  St.  Eep.   23,  34  South.   833    (not  because   directors  hold 

over  in  default  of  election,  and  refuse  to  show  books,  and  to  disclose 

facts   connected   with    business). 

278   Towle  V.   American   Building,   Loan   &  Investment   Society,   60 
Fed.  131.     See,  also,  Continental  Nat.  B.  &  L.  Assu,  v.  Miller,  44  Fla. 

757,  33  South.  404. 


217     APPOINTMENT  OF  EECEIVEES  OF  CORPORATIONS.  §  122 

where  the  directors  of  a  turnpike  company  have  refused 
to  keep  the  corporate  property  in  repair,  thus  rendering 
it  unproductive ;^'^^  where  the  business  and  affairs  of 
tlie  corporation  have  been  so  mismanaged  that  it  lias 
become  insolvent,  and  it  is  made  to  appear  that  all  the 
officers  and  directors  have  conspired  together  to  divert 
its  business  to  another  company,  dissipate  its  funds, 
and  fraudulently  absorb  and  apply  its  assets  to  the 
individual  benefit  of  such  officers  ;^^°  where  four  stock- 
holders get  control  of  the  majority  of  the  stock  of  the 
corporation,  elect  their  officers,  pocket  the  dividends, 
keep  false  books  to  deceive  other  stockholders,  and  buy 
a  worthless  franchise  for  which  they  mortgage  the  cor- 
porate property  for  the  purpose  of  having  the  mortgage 
foreclosed,  and  the  property  of  the  corporation  wiped 
out,  a  receiver  may  be  appointed  pending  an  action 
by  minority  stockholders  to  have  the  mortgage  can- 
celed ;^^^  in  a  suit  to  compel  an  accounting,  on  allega- 
tion that  the  officers  have  converted  and  are  continuing 
to  convert  the  money  and  property  of  the  corporation 
to  their  own  use,  as  pretended  salaries  and  expenses, 
without  any  authority  therefor,  and  fraudulently  ;^^^ 
where  the  president  and  secretary  of  a  corporation 
mortgaged  its  property,  when  it  was  nearly  or  quite  in- 
solvent, to  secure  their  antecedent  claims  against  the 

270  Wayne  Pike  Co.  v.  Hammons,  129  Ind.  368,  27  N.  E.  487.  The 
court  relied,  in  part,  on  the  broad  terms  of  the  statute  (Ind.  Rev. 
■Stats.  1881,  §  1222,  cl.  7),  providing  that  receivers  may  be  appointed 
in  cases  "where,  in  the  discretion  of  the  court,  it  may  be  necessary  to 
secure  ample  justice  to  the  parties." 

280  In  re  Lewis,  52  Kan.  G60,  35  Pac.  287.  The  court  remarks  that 
**in  most  cases  of  this  character,  no  other  adequate  remedy  exists." 

281  State  v.  Second  Judicial  Dist.  Court,  15  Mont.  324,  48  Am.  St. 
Eep.  682,  39  Pac.  316,  27  L.  R.  A.  392,  a  vigorous  and  instructive  opin- 
ioB. 

282  Cameron  v.  Groveland  Improvement  Co.,  20  Wash.  169,  72  Am, 
St.  Rep,  26,  54  Pac.  1128. 


f  123  EQUITABLE     REMEDIES.  218 

corporation  in  fraud  of  creditors,  and  threatened  to 
f*ell  out  in  gross  all  the  property  of  the  corporation 
without  notice,  and  in  this  way  to  close  up  the  business 
of  the  company.283  "in  all  such  cases  the  courts  should 
proceed  with  caution,  and  carefully  avoid  having  their 
process  made  use  of  for  the  purpose  merely  of  direct- 
ing corporate  action  adversely  to  the  policy  of  the  ma- 
jority stockholders  and  that  of  the  regular  chosen  offi- 
cers; that  is  to  say,  that  stockholders  must  not  be  per- 
mitted to  invoke  the  power  of  the  court,  through  the 
appointment  of  a  receiver,  simply  to  enforce  their  own 
ideas  of  the  conduct  of  affairs,  against  the  majority  of 
the  duly  constituted  officers.  Matters  of  corporate 
policy  must  be  determined  by  the  corporation  itself. 
On  the  other  hand,  when  it  clearly  appears  that  the  dis- 
pute is  not  of  that  character,  but  arises  out  of  an  at- 
tempt of  the  officers  or  the  majority  stockholders  to 
abuse  their  power  by  misappropriating  the  corporate 
property,  by  using  the  corporate  means  for  their  indi- 
vidual profit,  or  by  so  acting  as  to  willfully  and  wrong- 
fully jeopardize  the  corporate  business,  then  the  courts 
should  not  hesitate  to  afford  relief.  No  one  is  more 
helpless,  unless  aided  by  the  arm  of  the  law,  than  the 
holder  of  a  small  portion  of  the  stock  of  a  corporation, 
when  the  large  stockholders  combine  to  advance  their 
private  interest  at  the  expense  of  the  corporation."^^* 

§  123.  Receiver  After  Dissolution. — "Since  it  has  come 
to  be  recognized  everywhere  that,  upon  the  dissolution 
of  a  trading  corporation,  its  property  neither  reverts 
to  its  grantors  nor  escheats  to  the  state,  but  belongs, 

283  Haywood  v.  Lincoln  Lumber  Co.,  64  Wis.  639,  26  N.  W.  184. 
For  further  illustrations,  see  Elwood  v.  Bank,  41  Kan.  475,  21  Pac. 
673;  Du  Puy  v.  Transportation  etc.  Co.,  82  Md.  408,  33  Atl.  889,  34 
Atl.  910. 

284  Ponca  Mill  Co.  v.  Mikesell,  55  Neb.  98,  75  N.  W.  46. 


219     APPOINTMENT  OF  EECEIVEKS  OF  CORPORATIONS.  §  123 

after  payment  of  its  debts,  to  those  who  were  stockhold- 
ers at  the  date  of  dissolution,  ....  some  means  must 
be  provided  for  winding  up  the  corporation  and  distrib- 
uting its  assets  according  to  the  equitable  rights  of 
those  interested.  In  the  absence  of  any  statute  regulat- 
ing the  matter,  a  court  of  equity  would  have  the  un- 
doubted right,  in  a  proper  proceeding  instituted  by  a 
creditor  or  a  stockholder,  to  appoint  a  receiver  to  ad- 
minister the  property."^^^  Such  statutes  exist  in  a 
majority  of  the  states,  providing,  in  substance,  that 
upon  the  dissolution  of  any  corporation,  the  directors 
or  managers  of  the  affairs  of  such  corporation  at  the 
time  of  its  dissolution  shall  be  the  trustees  of  the  cred- 
itors and  stockholders  of  the  corporation  dissolved,  and 
shall  have  full  power  to  settle  the  affairs  of  the  cor- 
poration, collect  and  pay  the  outstanding  debts,  and  di- 
vide among  the  stockholders  the  moneys  and  other 
property  that  shall  remain,  after  the  payment  of  debts 
and  necessary  expenses.^^® 

285  Havemeyer  v.  Superior  Court,  84  Cal.  327,  362,  18  Am.  St.  Rep. 
192,  24  Pac.  121,  10  L.  R.  A.  627.  See,  also,  Stark  v.  Burke,  5  La.  Ann. 
740;  United  States  v.  Church  of  Jesus  Christ  of  L.  D.  S.,  5  Utah,  361, 
15  Pac.  473;  Olmstead  v.  Distilling  etc.  Co.,  73  Fed.  44.  The  last  case 
states  the  effect  of  an  Illinois  statute  (lU.  Rev.  Stats.,  c.  32,  §§ 
10-12),  whereby  the  corporate  capacity  of  corporations  whose  powers 
may  have  expired  by  limitation  or  otherwise  is  continued  during  the 
term  of  two  years  for  the  purpose  only  of  collecting  the  debts  due  said 
corporation  and  selling  and  conveying  the  property  and  effects  thereof. 
It  was  held  that  upon  a  judgment  of  ouster  in  quo  warranto  proceed- 
ings the  corporation  itself  (not  its  directors)  becomes  a  trustee  for 
its  creditors  and,  subject  to  their  rights,  for  its  stockholders;  and  a 
bill  by  a  stockholder,  in  behalf  of  himself  and  other  stockholders  who 
may  join  with  him,  showing  that  the  corporation  itself,  acting  through 
its  directors,  was  unable  to  execute  and  carry  out  the  trust,  because 
the  affairs  of  the  corporation  were  involved  and  its  property  in  dan- 
ger of  being  dissipated  through  executions  and  attachments,  pre- 
Bented  a  good  case  for  a  receiver  to  administer  its  assets. 

286  See  2  Stimson  Am.  St.  Law,  §  8356,  enumerating: 
Alabama.— Code,  1886,  S§  1691,  1693. 


i  123  EQUITABLE     REMEDIES.  220 

A  receiver  cannot  be  appointed  to  cari-y  on  tlie  busi- 
ness of  a  dissolved  corporation,  whose  assets  are  in  the 
hands  of  the  statutory  trustees,  when  the  corporation 
is  made  the  sole  party  defendant  to  the  bill.^^' 

In  the  settlement  of  the  affairs  of  a  dissolved  corpora- 
tion it  is  not  a  right  of  a  minority  of  the  stockholders 
to  have  a  decree  for  receivers  and  a  sale  of  assets,  es- 
pecially where  they  are  in  the  hands  of  a  trustee  who 
admits  the  existence  of  the  trust  and  shows  his  readi- 
ness and  ability  to  perform   it  more  effectively  and 

California.— Civ.  Code,  §  400. 

Colorado.— Gen.  Stats.    1883,  §  341. 

Delaware.— Biennial  Laws,  vol.  17,  c.  147,  §  32. 

Florida.— Digest,  1881,  c.  34,  §  21  (in  cases  of  voluntary  dissolution 
only). 

Idaho.— Kev.  Stats.  1887,  §  2648, 

Kansas.— Kelly's  Gen.  Stats,    1891,  c.  23,  §  42. 

Maryland.— Public  Gen.  Laws    1888,  c.  23,  §  272. 

Missouri.— Rev.  Stats.  1889,  §  2513. 

Montana.— Gen.  Laws,  §  489. 

Nebraska.— Comp.  Stats.  1885,  c.  16,  §  62. 

Nevada.— Gen.  Stats.  1885,  §  822. 

New  Jersey.— Corp.   57. 

New  Mexico.— Comp,  Laws    1884,  §  210. 

New  York.— Laws  of  1890,  c.  563,  §  19. 

North  Dakota.— Civ.   Code,    §    420. 

Ohio.— Revision  of  1890,  §  5675.     See,  also,  §§  5687,  5688. 

Oklahoma.— Stats.  1890,  §  995. 

South  Dakota.— Civ.  Code,  §  420. 

Tennessee.— Milliken  &  Vertrees'  Code  1884,  §§  1721,  1723. 

Texas.— Rev.  Stats.    1879,  §§  606,  607. 

Washington.— Code    1881,   §   2441. 

Wisconsin.— Sanb.  &  Berr.  Stats.  1889,  §  1764. 

Wyoming.— Rev.   Stats,    1887,   §   647. 

287  Weatherby  v.  Capital  City  Water  Co.,  115  Ala.  156,  22  South. 
140. 


221     APPOINTMENT  OF  EECEIVERS  OF  CORPORATIONS,  §  124 

more  economically  than  could  be  done  by  receivers.^'^^ 
And  where  the  charter  of  a  corporation  has  expired, 
and  its  property  and  assets  are  in  the  custody,  and  its 
affairs  under  the  management,  of  the  persons  desig- 
nated by  statute,  the  mere  fact  of  dissolution,  without 
more,  furnishes  no  ground  for  the  appointment  of  a 
receiver  ;2^^  similarly,  when  the  articles  of  association 
provide  the  manner  of  winding  up  the  business,  and  no 
reason  is  shown  why  the  mode  provided  cannot  be  exe- 
cuted, a  receiver  cannot  be  appointed  for  the  corpora- 
tion on  the  demand  of  one  of  the  members  who  is  dis- 
satisfied with  the  action  of  the  majority.^^® 

§  124.  Dissensions  in  the  Governing  Body  of  the  Corpora- 
tion, and  Among  the  Stockholders. — "The  power  of  a  court 
of  equity  to  appoint  a  receiver  of  a  corporation  either 
because  it  has  no  properly  constituted  governing  body, 
or  because  there  are  such  dissensions  in  its  governing 
body  as  to  make  it  impossible  for  the  corporation  to 
carry  on  its  business  with  advantage  to  its  stockhold- 
ers, appears  to  be  settled;  but  it  is  equally  well  settled 
that  this  power  is  subject  to  certain  limitations,  namely, 
it  must  always  be  exercised  with  great  caution,  and 
only  for  such  time  and  to  such  an  extent  as  may  be 
necessary  to  preserve  the  property  of  the  corporation, 
and  protect  the  rights  and  interests  of  its  stockTiolders. 
As  soon  as  a  lawfully  constituted  and  competent  gov- 
erning body  comes  into  existence,  whether  it  is  brought 
into  existence  by  an  adjustment  of  the  dissensions  or 

288  Baltimore  &  O.  R.  Co.  v.  Cannon,  72  Md,  493,  20  Atl.  123. 

289  Anderson  v.  Buckley,  126  Ala.  623,  28  South.  729;  for  facts 
authorizing  appointment,  see  S.  C,  on  second  appeal,  Buckley  v. 
Anderson,  137  Ala.  325,  34  South.  238.  In  support  of  the  text,  see, 
also,  Ferrell  v.  Evans,  25  Mont.  444,  65  Pac.  714. 

290  Pringle  v.  Eltringham  Const.  Co.,  49  La.  Ann.  301,  21  South. 
515;  and  see  Follett  v.  Field,  30  La.  Ann.  162. 


S   124  EQUITABLE     REMEDIES.  222 

by  the  election  of  a  new  body,  and  such  body  is  ready 
to  take  possession  of  the  property  of  the  corporation, 
and  proceed  in  the  proper  discharge  of  its  duties,  the 
court  must  lift  its  hand  and  retire. "^^^     But  mere  dis- 

291  Edison  v.  Edison  United  Phonograph  Co.,  52  N.  J.  Eq.  620, 
29  Atl.  195,  citing  Featherstone  v.  Cooke,  L.  E,  16  Eq.  298;  Trade 
Auxiliary  Co.  v.  Vickers,  L.  K.  16  Eq.  303;  Einstein  v.  Rosenfeld, 
38  N.  J.  Eq.  309;  Archer  v.  Waterworks  Co.,  50  N.  J.  Eq.  33,  24 
Atl.  508.  Also,  see  Wallace  v.  Pierce-Wallace  Pub.  Co.,  101  Iowa, 
313,  329,  63  Am.  St.  Eep.  389,  70  N.  W.  216.  In  the  first  case  it  was 
further  said:  "Neither  of  the  grounds  which  this  doctrine  recog- 
nizes as  sufficient  to  warrant  the  appointment  of  a  receiver  exists 
in  this  case.  The  defendant  corporation  has  a  lawfully  constituted 
governing  body,  which  is  in  peaceable  possession  of  all  its  propert}', 
controlling  and  directing  its  business,  regularly  and  peacefully,  in 
conformity  to  the  judgment  of  seven  of  its  nine  directors.  Two  of 
the  nine  differ  in  judgment  from  the  other  seven.  The  two  believe 
that  the  adoption  of  a  different  course  of  business  from  that  which 
is  now  pursued  would  result  in  larger  gains.  Both  methods  are 
clearly  within  the  purposes  and  powers  of  the  corporation.  Which 
method  shall  be  pursued,  or  whether  one  or  both,  is  a  question  which 
the  law  commits  absolutely  and  unconditionally  to  the  judgment  of 
a  majority  of  the  directors.  Though  somewhat  disguised,  the  real 
purpose  of  the  bill  in  this  case  appears,  when  critically  examined, 
to  be  to  induce  judicial  action  which  shall  substitute  the  judgment 
of  a  minority  of  the  directors  of  this  corporation  for  that  of  the 
majority.  That  cannot  be  done.  It  is  beyond  judicial  power.  No 
rule  of  law  is  better  settled  than  that  which  declares  that  so  long 
as  the  directors  of  a  corporation  keep  within  the  scope  of  their  pow- 
ers, and  act  in  good  faith  and  with  honest  motives,  their  acts  are 
not  subject  to  judicial  control  or  revision."  In  Wallace  v.  Pierce- 
Wallace  Pub.  Co.,  siiijra,  a  somewhat  stromger  case,  it  was  held  that 
a  receiver  will  not  be  appointed  on  the  ground  that  the  corporation 
has  but  two  stockholders  owning  an  equal  number  of  shares  of  stock, 
and  owns  stock  in  another  corporation,  respecting  the  management 
of  which  there  is  such  disagreement  between  the  stockholders  in 
the  first-named  corporation  that  they  cannot  agree  in  any  measures 
for  the  voting  of  such  stock,  or  for  the  management  of  the  second 
corporation,  nor  will  a  receiver  be  appointed  of  such  stock  alone. 
Emphasis  was  laid  on  "the  temporary  and  limited  nature  of  the  relief 
that  is  permissible  in  such  cases.  "Now,  a  court  of  equity  has  no 
power  to  make  them  [the  stockholders]  agree;  and,  if  their  differ- 
ences are  such  that  it  is  impossible  for  them  to  carry  on  their  busi- 
ness, it  is  not. likely  that  the  appointment  of  a  receiver  wiU  bring 


223     APPOINTMENT  OF  EECEIVEKS  OF  CORPORATIONS.  §  121 

satisfaction  by  a  minority  of  the  stockholders  of  a  cor- 
poration with  its  management  by  the  majority,  in  the 

about  a  reconciliation What,  then,  must  result?     Either  that 

a  court  must  carry  on  this  business  for  the  interest  of  the  stock- 
holders until  the  corporation  is  dissolved  by  lapse  of  time,  or  that 
one  of  the  parties  should  sell  his  stock,  or  such  portion  thereof,  as 
will  give  a  majority  to  one  or  the  other  of  these  litigants."  See,  to 
the  same  effect,  Little  Warrior  Coal  Co.  v.  Hooper,  105  Ala.  665,  17 
South.  118.  In  this  case  one  of  the  grounds  of  complaint  was,  that 
the  stock  was  equally  divided  between  the  complainant  and  the  two 
defendants;  that  the  latter  acted  and  voted  in  confederation;  that 
the  three  could  not  agree  as  directors  in  the  management  of  the  busi- 
ness, and  could  not  elect  directors;  and  that  for  this  reason  a  re- 
ceiver should  be  appointed  to  take  charge  of  and  operate  the  busi- 
ness. The  bill  did  not  show  whether  the  plaintiff  or  the  defend- 
ants were  to  blame,  and  charged  no  fraud.  The  court  says:  "The 
bill  shows  a  mere  disagreement  among  themselves  as  to  how  the 
business  should  be  operated  and  managed,  and  who  should  control 
it.  No  case  has  been  cited,  and  we  have  found  none,  nor  any  prin- 
ciple of  law,  which  would  authorize  the  appointment  of  a  receiver 
upon  such  averments." 

From  the  brief  statement  of  facts  in  the  last  case,  it  is  difficult 
to  distinguish  it  from  Sternberg  v.  Wolff,  56  N.  J.  Eq.  389,  67  Am. 
St.  Rep.  494,  39  Atl.  397,  39  L.  R.  A.  762,  reversing  the  decision  of 
Vice-chancellor  Pitney  in  56  N.  J.  Eq.  555,  42  Atl.  1078.  The  im- 
portance of  this  decision  justifies  a  somewhat  lengthy  quotation 
from  the  opinion  of  Depue,  J.  "The  two  parties  to  the  controversy 
—  Sternberg  and  his  wife,  on  the  one  side,  and  Wolff  and  his  wife, 
on  the  other  side— are  the  owners  each  of  one-half  of  the  capital 
stock.  These  four  individuals  are  directors  of  the  company,  and 
by  the  by-laws  the  whole  number  is  necessary  to  make  a  quorum  for 
the  transaction  of  business.  The  dissensions  between  these  two  par- 
ties—Sternberg  and  his  wife,  on  one  side,  and  Wolff  and  his  wife, 
on  the  other  side — have  brought  the  affairs  of  this  company  to  a 
deadlock,  so  far  as  any  corporate  action  by  the  board  of  directors 
is  concerned.  It  may  be  assumed  that  the  court  of  chancery  has 
no  jurisdiction  to  dissolve  a  solvent  corporation,  and  distribute  its 
assets,  on  the  ground  that  the  business  of  the  corporation  is -improp- 
erly conducted  by  its  board  of  directors,  even  though  such  misman- 
agement be  with  the  concurrence  of  a  majority  of  the  stockholders; 
but  the  jurisdiction  of  the  court  of  chancery  to  control  the  business 
of  a  company,  especially  a  trading  company,  pending  a  litigation 
over  the  management  and  conduct  of  its  business,  must  necessarily 
exist;  and  we  think,  pending  a  litigation  such  as  that  which  is  in- 
augurated by  the  proceedings  in  this  case,  a  receiver  may  be  ap- 


J  124  EQUITABLE     REMEDIES.  224 

absence  of  fraud  or  insolvency,  is  not  sufficient  to  au- 
thorize the  court  to  appoint  a  receiver  at  the  instance 

pointed No  reason  appears  why  in  the  matter  of  the  control 

and   conduct  of   its  business   the   corporation   and   its   officers  should 
not  be  within  the  control  of  the  court  of  chancery  to  an  extent  cor- 
responding  with   the   control   of   that   court   over   the   business   of   a 
mere    partnership.     The    cases   seem    to    establish    the   power   of   the 
eourt  in  virtue  of  its  general  jurisdiction  to  preserve  the  subject  of 
litigation  pendente  life,  though  it  may  relate  to  the  affairs  of  a  trad- 
ing company  in  form  organized    as    a    corporation.     The    two     cases 
eited  by  the  vice-chancellor  in  his  second  opinion  are  to  that  effec* 
Featherstone   v.   Cooke,   L.   R.    16    Eq.   298;    Trade   Auxiliary   Co.   v. 
Vickers,  L.  R.  16  Eq.  303.     In  the  first  case  the  complications  in  the 
affairs  of  the  company  arose  out   of  a   division   in  the  board  of   di- 
rectors, which  made  it  absolutely  impossible  that  the  affairs  of  the 
fompany  could    be    conducted    with    advantage.     Vice-Chancellor  Ma- 
iins,  in  that  case,  says:   'With  regard  to  private  partnerships,  noth- 
ing is  of  more  frequent  occurrence  than  the  quarrels  of  partners.     If 
partners   quarrel,  oust   each   other  from  the  management,  or  so   con- 
•luct  themselves  that  the  partnership  cannot  go  on  with  advantage, 
it  is  every  day's  practice  for  the  court  to  interfere  by  injunction, 
and   appoint    a   receiver   if   necessary.     With    regard   to   public    com- 
panies, I  apprehend  the  same  principle  is  applicable.     If  a  state  of 
things  exists  in  which  the  governing  body  are  so  divided  that  they 
cannot  act  together,  and  there  is  the  same  kind  of  feeling  between 
the  members  as  there  is  frequently  in  the  case  of  private  partner- 
ships, it  is  clearly  within  the  rule  of  this  court  to  interfere,  and  it 
will   do  so.'     The   court   in   that   case   intervened   by   injunction   and 
receiver    simply    to    protect    the    property    of    the    company,    to    con- 
tinue,   however,    no    longer    than    until    a    governing   body   was    duly 
appointed.     In  the  latter  case  the  dissension  was  also  in  the  board 
of    directors,   one   set   of   which   closed   the   office   doors   of   the   com- 
pany's building,   and  the   other  set,  with   the  aid  of   some   laborers, 
broke    open    the    doors   with    crowbars,    and   forced   the    office    open. 
The  prayer  of  the  bill  was  for  the  appointment  of  a  receiver  until 
the  proper  board   of   directors   was   constituted.     The   vice-chancellor 
placed  the  affairs  of  the  company  in  the  hands  of  a  receiver  pendente 
lite  until  a  new  governing  body  was  appointed."     Mr.  Justice  Depue 
also  finds  warrant  for  the  appointment  in  certain  dicta  in   Einstein 
V.  Rosenfeld,  38  N.  J.  Eq.  309;  in  Edison  v.  Phonograph  Co.,  supra; 
in   Fougeray   v.   Cord,   50   N.   J.   Eq.   185,    756,   24   Atl.   499,   26   Atl. 
866;   and   in  the   opinion   of   Chancellor  McGill  in  Archer  v.   Water- 
works, 50  N.  J.  Eq.  33,  24  Atl.  508. '  In  the  last  case,  a  suit  by  a 
stockholder,   the   complainant   seemed   to   have   the   equitable   owner- 
ship of  certain  stock,  but  the  parties  in  control  of  the  corporation 


225     APPOINTMENT  OF  RECEIVERS  OF  CORPORATIONS.  §  124 

of  the  minority.^®^     "A  court  of  equity  has  no  power  to 
interpose  its  authority  for  the  purpose  of  adjusting  con- 

fraudulently  refused  to  make  the  transfer  of  such  stock  on  the  cor- 
poration's books.  This,  of  course,  prevented  the  complainant  from 
voting.  The  chancellor  said:  "I  think  it  is  plainly  my  duty  to  in- 
terfere by  injunction,  to  prevent  the  perpetration  of  the  wrong  here 
threatened.  If  the  present  directors  of  the  company  continue  their 
dissensions,  so  that  the  affairs  of  the  company  are  not  speedily  at- 
tended to,  upon  a  proper  application  I  will  care  for  the  property, 
pending  the  determination  of  the  suit,  through  the  instrumentality  of 
a  receiver.  Such  actions  will  be  supported  by  precedents  and  au- 
thority [citing  the  cases  from  L.  R.  16  Eq.].  My  interference, 
however,  by  injunction  and  receiver,  will  be  limited  to  the  impera- 
tive requirements  of  the  present  emergency."  Jasper  Land  Co.  v. 
Wallis,  123  Ala.  652,  26  South.  659,  was  a  case  of  rival  boards  of 
directors.  "The  Jasper  Land  Company  has  two  boards  of  directors, 
or  rather  there  are  two  sets  of  men,  each  claiming  to  be  and  con- 
stitute its  board  of  directors.  Each  of  these  alleged  boards  is  at- 
tacking the  integrity  and  existence  of  the  other  in  divers  proceed- 
ings  at   law   and  in   chancery It   is  plain   to   us   that   neither 

set  is  so  in  possession  and  control  of  the  property  and  affairs  of  the 
company  as  to  be  able  to  take  the  necessary  steps  to  the  effectua- 
tion of  the  relief  the  stockholders  are  entitled  to  [viz.,  relief  to 
minority  stockholders  against  mismanagement  and  misappropriation 
of  funds  of  the  corporation].  In  such  case  the  appointment  of  a  re- 
ceiver, even  though  the  corporation  be  solvent,  to  take  charge  and 
control  of  its  effects  and  concerns,  at  least  until  there  is  a  recog- 
nized board  of  directors  competent  to  faithfully  and  efficiently  con- 
serve the  interests  of  all  the  stockholders,  is  within  the  proper  exer- 
cise of  the  jurisdiction  of  the  chancery  court,"  citing  many  of  the 
cases  supra.  For  further  instances  where  receivers  were  appointed 
because  of  dissensions,  or  the  existence  of  rival  boards  of  directors, 
see  Powers  v.  Blue  Grass  Building  etc.  Assn.,  86  Fed.  705;  Tompkins 
Co.  V.  Catawba  Mills,  82  Fed.  780  (in  suit  by  creditors);  Gibbs  v. 
Morgan  (Idaho),  72  Pac.  733;  Sheridan  Brick  Works  v.  Marion  Trust 
Co.,  157  Ind.  292,  87  Am.  St.  Rep,  207,  61  N.  E.  666.  As  to  the  ap- 
pointment of  a  receiver  where  there  is  no  governing  body  of  the 
corporation,  see  In  re  Belton,  47  La.  Ann.  1614,  18  South.  642,  30 
L.  R.  A.  648;  Brown  v.  Union  Ins.  Co.,  3  La.  Ann.  177. 

The  rule  of  Featherstone  v.  Cooke  and  Auxiliary  Co.  v.  Vickers, 
as  stated  in  the  text,  thus  appears  to  have  met  with  abundant  rec- 
ognition in  this  country,  save  in  the  case  in  105  Ala.,  where  the 
court's  attention  was  probably  not  called  to  these  cases,  and  in  the 
ease  in  101  Iowa,  where  they  are  expressly  distinguished. 

S92  Flecker  v.  Emporia   City  Ry.   Co.,  48  Kan.   577,  30   Pac.    18;. 
Equitable  Remedies,  Vol.  I — 15 


5  125  EQUITABLE     KEMEDIES.  226 

troversies  that  have  arisen  among  the  shareholders  or 
directors  of  a  corporation  relative  to  the  proper  mode 
of  conducting  the  corporate  business,  as  it  may  do  in 
case  of  a  similar  controversy  arising  between  the  mem- 
bers of  an  ordinary  partnership.  Corporations  are  in 
a  certain  sense  legislative  bodies.  They  have  a  legis- 
lative power  when  the  directors  or  shareholders  are 
duly  convened  that  is  fully  adequate  to  settle  all  ques- 
tions affecting  their  business  interests  or  policy,  and 
they  should  be  left  to  dispose  of  all  questions  of  that 
nature  without  applying  to  the  courts  for  relief.  A 
stockholder  in  a  corporation  cannot  successfully  in- 
voke the  power  of  a  chancery  court  to  control  its  ofifl- 
cers  or  board  of  managers,  or  to  wrest  the  corporate 
property  from  their  charge  through  the  agency  of  a  re- 
ceiver, so  long  as  they  neither  do  nor  threaten  to  do 
any  fraudulent  or  ultra  vires  acts,  and  so  long  as  they 
keep  within  the  limits  of  by-laws  which  have  been  pre- 
scribed for  their  governance."^'^ 

§  125.  Receiver  on  Application  of  Creditors. — The  ques- 
tion of  a  general  creditor's  right  to  a  receiver  is  prac- 
tically a  question  of  his  right  to  maintain  a  creditor's 
bill,  and  is,  therefore,  more  appropriately  considered 
in  another  place.^®^  The  defendant  corporation  may 
lose  its  right  to  make  the  objection  that  the  plaintiff 
creditors  have  not  exhausted  their  legal  remedy,  by  ac- 

Bridgeport  Development  Co.  v.  Tritsch,  110  Ala.  274,  20  South.  16; 
Hill  V.  Gould,  129  Mo.  106,  30  S.  W.  181;  Peatman  v.  Centerville 
Light  etc.  Co.,  100  Iowa,  245,  69  N.  W.  541;  Eepublican  Mountain 
Silver  Mines  v.  Brown,  58  Fed.  647,  7  C.  C.  A.  412,  24  L.  E.  A.  776; 
Hunt  V.  American  Grocery  Co.,  80  Fed.  70. 

293  Eepublican  Mountain  Silver  Mines  v.  Brown,  58  Fed.  647,  7 
C.  C.  A.  412,  24  L.  E.  A.  776. 

294  See  post,  vol.  11,  chapter  on  "Creditors'  Bills";  Hollins  v. 
Brierfield  Coal  &  Iron  Co.,  150  U.  S,  371,  14  Sup.  Ct.  127,  37  L.  ed. 
1113. 


227     APPOINTMENT  OF  EECEIVEBS  OF  CORPORATIONS.  §  125 

quiescence,  for  a  term  of  several  months,  in  the  appoint- 
ment and  possession  of  a  receiver  in  behalf  of  general 
creditors.^^^  The  general  rule  is,  of  course,  that  a 
court  of  equity  will  not  appoint  a  receiver  of  a  corpora- 
tion, upon  the  application  of  a  creditor  without  a  lien 
who  has  not  reduced  his  claim  to  judgment.^^^ 

295  Brown  v.  Lake  Superior  Iron  Co.,  134  U.  S.  530,  10  Sup.  Ct. 
604,  33  L.  ed.  1021. 

296  Texas  Consol.  etc.  Assn.  v.  Storrow,  92  Fed.  5,  34  C.  C.  A.  182; 
Leary  v.  Colombia  etc.  Nav.  Co.,  82  Fed.  775;  Smith-Dimmick  Lum- 
ber Co.  V.  Teague,  119  Ala.  385,  24  South.  4;  Smith  v.  Superior 
Court,  97  Cal.  348,  32  Pac.  322;  French  Bank  Case,  53  Cal.  495; 
International  Trust  Co.  v.  United  Coal  Co.,  27  Colo.  246,  83  Am. 
St.  Rep.  59,  60  Pac.  621;  Dodge  v.  Pyrolusite  Manganese  Co.,  69  Ga. 
665;  Klee  v.  E.  H.  Steele  Co.,  60  Minn.  355,  62  N.  W.  399;  Mann  v. 
German-American  Inv.  Co.  (Neb.),  97  N.  W.  600.  See,  also,  Fal- 
mouth Nat.  Bank  v.  Cape  Cod  Ship  Canal  Co.,  166  Mass.  550,  44  N. 
E.  617.  In  Nunnally  v.  Strauss,  94  Va.  255,  26  S.  E.  580,  however, 
it  was  held  that  a  simple  contract  creditor  of  an  insolvent  corpora- 
tion which  has  ceased  to  do  business  and  has  been  abandoned  by 
its  officers  may  sue  on  behalf  of  himself  and  other  creditors  for  a 
receiver.  "In  the  case  of  Fainey  v.  Bennett,  27  Gratt.  365,  this 
court  has  very  aptly  likened  an  insolvent  corporation  that  has  ceased 
to  do  business  to  an  insolvent  decedent's  estate,  and  has  argued 
with  much  force  that,  upon  the  same  principle  that  a  court  of 
equity  administers  a  dead  man 's  estate  under  a  bill  filed  by  simple 
contract  creditors  for  that  purpose,  it  should  administer  the  affairs 
of  a  corporation  that  has  ceased  to  do  its  life  work.  That  was 
the  case  of  an  insolvent  banking  institution.  Its  assets  remained 
in  the  hands  of  one  or  more  of  the  officers  last  elected  by  the  di- 
rectors, but  no  one  had  been  appointed  by  the  directors  or  stock- 
holders to  take  charge  of  its  assets  and  wind  up  its  affairs;  and  it 
was  held  proper,  under  the  circumstances,  by  analogy  to  the  ad- 
ministration of  a  dead  man 's  estate,  at  the  suit  of  simple  contract 
creditors  who  had  no  lien,  for  a  court  of  equity  to  take  charge  of 
the  affairs  of  the  abandoned  corporation,  administer  its  assets,  and 
apply  the  same  for  the  benefit  of  its  creditors."  See,  also,  Doe  v. 
Northwest  Coal  &  Transportation  Co.,  64  Fed.  928;  Kentucky  Racing 
&  Breeding  Assn.  v,  Galbreaith,  25  Ky.  Law  Rep.  1212,  77  S.  W. 
371  (receiver  appointed,  "where  the  assets  of  an  insolvent  cor- 
poration, which  a  [general]  creditor  is  entitled  to  have  applied  in 
satisfaction  of  his  demands,  will  probably  be  lost  or  fraudulently 
disposed   of  by  improvident   or   corrupt   officials  unless  a   receiver   ia 


i  125  EQUITABLE     REMEDIES.  228 

It  is  held  in  Ohio  that  a  receiver  may  properly  be 
appointed,  by  virtue  of  the  general  usages  of  equity,  in 
the  equitable  action  to  enforce  payment  of  the  statu- 
tory liability  of  stockholders,^^^  A  receiver  is  a  means 
of  effectuating  the  remedy  of  a  judgment  creditor  of 
a  corporation  seeking  to  enforce,  in  behalf  of  himself 
and  other  creditors,  the  application  of  unpaid  stock 
subscriptions  to  the  discharge  of  the  debts  of  the  cor- 
poration.^^* 

When  the  rents  and  profits  of  a  bridge  company  for 
a  certain  period  have  been  sold  under  execution  to  a 
judgment  creditor  of  the  company,  the  court  may  cause 
possession  of  the  bridge  to  be  taken  by  a  receiver  to  col- 
lect the  tolls  and  pay  them  into  court  for  the  purpose 
of  discharging  the  judgment.^^^ 

An  assignment  for  the  benefit  of  creditors  by  a  cor- 
poration after  service  of  process  on  it  in  a  suit  by  a 
creditor  for  a  receiver  does  not  affect  the  jurisdiction 
of  the  court  to  appoint  a  receiver.^*^^ 

If  fraud  on  the  part  of  the  corporate  management  is 
the  ground  on  which  relief  is  asked,  the  conduct  and 

appointed."  The  text-books  relied  upon  by  the  court  hardly  war- 
rant so  broad  a  statement) ;  Barber  v.  International  Co.  of  Mexico, 
73  Conn.  587,  48  Atl.  758  (where  assets  of  corporation  A  were  trans- 
ferred to  corporation  B,  under  agreement  that  B  would  pay  all  the 
liabilities  of  A,  jurisdiction  to  appoint  receiver  of  A  to  enforce  this 
agreement  for  the  benefit  of  A's  creditors;   two  judges  dissenting). 

In  the  well-considered  case  of  Darragh  v.  H.  Wetter  Mfg.  Co.,  49 
U.  S.  App.  1,  23  C.  C.  A.  609,  78  Fed.  7,  a  suit  in  the  federal  court 
was  sustained,  by  a  contract  creditor  who  had  not  reduced  his  claim 
to  judgment,  under  the  statutes  of  Arkansas,  for  the  appointment 
of  a  receiver  and  the  sale  of  the  property  of  an  insolvent  corporation 
of  that  state  and  the  distribution  of  its  assets  among  its  creditors. 

297  Zieverink  v.  Kemper,  50  Ohio  St.  208,  34  N.  E.  250. 

288  See  Adler  v.  Milwaukee  etc.  Mfg.  Co.,  13  Wis.  57,  62.  See, 
also,  Ogilvie  v.  Knox  Ins.  Co.,  22  How.  380,  16  L.  ed.  349. 

299  Covington  Drawbridge  Co.  v.  Shepherd,  21  How.  112,  16  L.  ed. 
38. 

•00  Belmont  Nail  Co.  v.  Columbia  Iron  etc.  Co.,  46  Fed.  8. 


E29     APPOINTMENT  OF  EECEIVEBS  OF  COBPOKATIONS.  §  120 

facts  from  which  the  conclusion  of  fraud  is  deduced 
must  be  averred.^" ^ 

If  the  case  is  a  proper  one  for  a  receiver,  the  denial 
by  the  defendant  that  the  corporation  has  any  property 
or  effects  of  any  kind  is  no  bar  to  the  exercise  of  the 
jurisdiction.  If  the  denial  in  this  respect  ultimately 
proves  true,  the  defendant  is  not  injured,  and  the  com- 
plainant proceeds  at  the  peril  of  being  obliged  to  pay 
costs.^°* 

§  126.  In  Foreclosure  of  Mortgag-es  on  Corporate  Property. 
The  power  of  a  court  of  chancery  to  appoint  a  receiver 
pendente  lite  in  foreclosure  cases  is  a  part  of  its  in- 
cidental jurisdiction,  not  depending  upon  any  statute. 
This  jurisdiction  is  not  affected  by  the  character  of  the 
mortgagor,  whether  an  individual  or  a  corporation.  It 
rests  upon  grounds  quite  independent  of  the  character 
of  the  parties  to  the  instrument,  or  the  nature  of  the 
mortgaged  property.^"^  Mere  insolvency,  arising  from 
no  proved  fault  in  the  management  of  private  corpora- 

801  Fort  Payne  Furnace  Co.  v.  Fort  Payne  Coal  etc.  Co.,  96  Ala. 
472,  38  Am.  St.  Eep.  109,  11  South.  439.  Thus,  a  creditors'  bill 
which  merely  avers  that  the  directors  of  the  defendant  corporation, 
acting  in  pursuance  of  a  vote  of  the  stockholders,  had  ordered  the 
issue  of  bonds,  secured  by  a  trust  deed  on  all  its  property,  that  a 
portion  of  those  bonds  had  been  issued  and  disposed  of,  that  the 
directors  afterwards  voted  to  sell  the  corporate  property  at  a  public 
sale,  that  the  directors  then  issued  a  circular  letter  appealing  to 
the  stockholders  to  purchase  the  bonds  already  disposed  of,  does  not 
present  a  case  for  the  appointment  of  a  receiver,  there  being  no 
allegations  that  any  of  the  directors  had  an  interest  in  the  bonds  or 
in  the  sale  thereof,  or  that  those  bonds  were  not  sold  for  their  value 
and  to  bona  fide  purchasers,  nor  any  facts  stated  which  show  that 
the  proposed  sale  was  not  in  strict  compliance  with  the  terms  of  the 
trust  deed:  Id. 

302  Tumbull  V.  Prentiss  Lumber  Co.,  55  Mich.  387,  21  N.  W.  375. 

303  United  States  Trust  Co.  v.  New  York,  W.  S.  &  B.  E.  Co.,  101 
N.  Y.  478,  5  N.  E.  316. 


i  126  EQUITABLE     REMEDIES.  230 

tions,  is  not  a  sufficient  ground.^®^  But  where  the  com- 
plainant set  up  mortgages  of  realty  and  personalty,  the 
insolvency  of  the  corporation  being  averred,  and  dis- 
sensions between  the  stockholders  being  alleged,  tend- 
ing to  show  that  the  condition  of  insolvency  would 
continue  and  the  assets  of  the  corporation  be  exposed 
to  deterioration,  and  the  rights  of  creditors  disre- 
garded, it  was  held  that  the  jurisdiction  of  the  court 
was  unquestionable,  and  that  the  complainant  had  es- 
tablished its  right  to  the  appointment  of  a  receiver.^"'^ 
While  it  is  true,  as  a  general  rule,  that  appointing 
a  receiver  is  auxiliary  to  the  main  purpose  of  the  suit, 

304  Trust  &  Deposit  Co.  v.  Spartanburg  Waterworks  Co.,  91  Fed. 
324  (suit  for  foreclosure  by  holder  of  bonds  secured  by  second 
mortgage).  The  court  further  says:  "There  should  be  some  evi- 
dence of  waste  or  mismanagement  or  carelessness  or  fraud,  or  extrav- 
agance, wantonness,  or  collusion;  some  ground  to  apprehend  that 
the  property  will  suffer  deterioration  or  serious  injury;  something  to 
show  that  there  is  danger  of  probable  loss,  or  that  some  rights  may 
be  substantially  impaired."  In  Stewart  v.  Chesapeake  etc.  Canal 
Co.,  5  Fed.  149,  4  Hughes,  47,  the  holder  of  bonds  secured  by  a 
first  mortgage  of  the  tolls  and  revenue  of  a  canal  applied  for  a  re- 
ceiver, alleging  that  the  default  in  payment  of  the  bonds  was  due 
to  wasteful  and  corrupt  management  of  the  corporation.  The  mort- 
gage provided  that  the  corporation  should  remain  in  possession  un- 
less it  should  be  shoTvn  that  default  was  from  other  causes  than 
failure  cf  business.  It  was  held  that  to  justify  a  receiver  to  man- 
age for  an  indefinite  time  an  enterprise  attended  with  such  risk  and 
difficulty,  it  must  be  shown  beyond  question  that  the  default  was  due 
to  mismanagement,  or  that  the  safety  of  the  property  was  threatened 
by  corporate  mismanagement,  and  that  a  receivership  probably 
would  result  in  effectual  relief.  See,  also.  City  of  Cape  May  v. 
Cape  May  etc.  Co.,  59  N.  J.  Eq.  59,  49  Atl.  973. 

305  De  La  Vergne  etc.  Co.  v.  Palmetto  Brewing  etc.  Co.,  72  Fed. 
579,  citing  Kountze  v.  Hotel  Co.,  107  U.  S.  378,  2  Sup.  Ct.  911,  27 
li  ed.  609.  For  another  case  where  dissensions  between  the  officers 
of  a  company,  greatly  embarrassed  by  its  debts,  the  value  of  whose 
property,  franchises,  etc.,  largely  depended  upon  the  continuation 
of  its  business,  rendered  a  receiver  almost  a  necessity  in  an  action 
to  foreclose  a  chattel  mortgage  of  the  company's  property,  see  State 
Journal  Co.  v.  Commonwealth  Co.,  43  Kan.  93,  22  Pac.  982. 


231     APPOINTMENT  OF  RECEIVERS  OF  CORPORATIONS.    §  127 

and  that  no  suit  can  be  brought  until  the  debt  is  due, 
it  is  held  that  there  is  no  reason  for  limiting  to  rail- 
road companies  the  doctrine  that  "where  default  is  im- 
minent and  manifestly  inevitable,  though  none  has 
taken  place,  a  receiver  of  a  railroad  company  may  be 
appointed,  on  the  application  of  a  mortgage  bond- 
holder, in  order  to  prevent  the  breaking  up  and  de- 
struction of  its  business,  and  to  protect  the  property 
against  attachments  and  executions  in  favor  of  other 
creditors."^"* 

A  formal  mortgage  is  not  essential  in  order  to  give 
holders  of  bonds  which  are  a  lien  on  the  property  of 
the  corporation  standing  to  apply  for  a  receivership*, 
as  in  a  case  where  the  bonds  of  a  canal  company  pledged 
the  effects,  real  and  personal,  of  the  company,  and  con- 
tained recitals  that  they  should  have  preference  over 
all  debts  to  be  thereafter  contracted,  and  that  in  default 
of  the  payment  of  interest  the  holder  of  the  bonds  might 
enter  into  possession  of  the  tolls,  water  rates,  and  other 
incomes  of  the  company,  and  might  apply  for  the  ap- 
pointment of  a  receiver.^*^' 

§  127.  Receivers  Authorized  by  Statutes. — The  statutes 
of  the  states  that  have  legislated  on  the  subject  of  re- 
ceivers of  corporations  vary  so  greatly,  not  only  in  de- 

806  Thompson  v.  Natchez  Water  etc.  Co.,  68  Miss.  423,  9  South. 
821. 

807  White  Water  Valley  Canal  Co.  v.  Vallette,  21  How.  414,  16  L. 
ed.  154. 

As  to  the  appointment  of  receivers  and  managers  on  the  applica- 
tion of  debenture  holders,  under  the  liberal  terms  of  the  English 
Judicature  Act,  see  In  re  Pound,  42  Ch.  D.  402;  In  re  Joshua 
Stubbs,  Limited,  [1891]  1  Ch.  187,  475;  McMahon  v.  West  Kent 
Iron  Works  Co.,  [1891]  2  Ch.  148;  Strong  v.  Carlyle  Press,  [1893]  1 
Ch.  268;  British  Linen  Co.  v.  South  American  &  Mexican  Co.,  [1894] 
1  Ch.  108;  Bartlett  v.  West  Metropolitan  Tramways  Co.,  [1893]  3 
Ch.  437;  Marshall  v.  South  Staffordshire  Tramways  Co.,  [1895]  2  Ch. 
36;  and  caaee  cited,  ante,  §  92,  note  134. 


§127  EQUITABLE     REMEDIES.  232 

tails,  but  in  their  whole  scope  and  purpose,  that  no  at- 
tempt will  here  be  made  to  classify  the  many  and  im- 
portant cases  interpreting  this  mass  of  legislation.  Per- 
haps the  commonest  provision  is  that  allowing  the  court 
to  appoint  a  receiver  "in  the  cases  where  a  corporation 
has  been  dissolved,  or  is  insolvent,  or  in  imminent  dan- 
ger of  insolvency,  or  has  forfeited  its  corporate  rights" ; 
but  the  courts  are  by  no  means  unanimous  in  deciding 
upon  the  effect  to  be  given  to  this  statute.^''^  The  re- 
marks of  a  very  able  judge  in  description  of  this  legis- 
lation may  be  of  interest:  "In  the  absence  of  any  stat- 
ute regulating  the  matter,  a  court  of  equity  would  have 
the  undoubted  right,  in  a  proper  proceeding  instituted 
by  a  creditor  or  stockholder,  to  appoint  a  receiver  to 
administer  the  property  [of  a  corporation  that  has 
ceased  to  exist].  But  in  many  of  the  states,  statutes 
have  been  passed  expressly  providing  for  the  appoint- 
ment of  receivers,  or  trustees  exercising  the  same  func- 
tions, though  sometimes  called  by  other  names.  In  all 
cases  it  is  made  their  duty  to  collect  the  assets,  pay 
the  debts,  and  distribute  the  surplus  pro  rata  to  the 
stockholders.  As  this  is  precisely  what  a  court  of 
equity  would  have  done  in  the  absence  of  a  statute,  it 
is  to  be  inferred  that  the  motive  of  such  legislation  has 
been  to  accomplish  some  other  object, — some  object,  that 
is  to  say,  for  which  express  legislation  was  necessary. 
This  inference  is  fully  justified  and  amply  borne  out 
by  reference  to  the  different  statutes.  They  seem  to 
have  been  enacted  with  the  object,  in  some  instances, 
of  abrogating  the  old  law  of  forfeiture,  and  reversion; 
in  others,  of  committing  the  administration  to  other 
courts  than  courts  of  equity;  in  others,  to  provide  gen- 
eral and  uniform  rules  of  procedure,  as  to  giving  notice 

808  Compare    the    California    cases    cited    below    with    those    from 
Idaho,  Indiana  and  Texas, 


233     APPOINTMENT  OF  RECEIVERS  OF  CORPORATIONS.    {  127 

to  creditors,  etc.,  to  take  the  place  of  rules  of  court  and 
specific  orders  to  be  made  by  the  chancellor  in  each 
particular  case ;  in  others,  to  keep  the  matter  out  of  the 
<?ourts  altogether,  as  by  allowing  the  dissolved  corpo- 
ration to  continue  its  existence  for  a  term  for  purposes 
of  liquidation,  but  for  no  other  purpose.  The  whole 
mass  of  this  legislation  seems  to  be  pervaded  by  the 
one  idea  of  simplifying,  expediting,  and  cheapening  the 
means  of  accomplishing  the  one  object  of  transferring- 
to  the  stockholders  of  a  defunct  corporation  their  full 
share  of  its  surplus  assets.  There  is,  from  beginning 
to  end,  no  suggestion  of  added  penalties  or  punishment 
after  death."309 

The  more  important  of  these  statutes,  and  the  cases 
interpreting  them  that  appear  to  be  of  most  general  in- 
terest, are  given  at  some  length  in  the  note.^^** 

309  Beatty,  C.  J.,  in  Havemeyer  v.  Superior  Court,  84  Cal.  327, 
363,  18  Am.  St.  Rep.  192,  24  Pac.  121,  10  L.  R.  A.  627. 

310  Alabama.— The  statute  relating  to  proceedings  for  the  volun- 
tary dissolution  of  corporations  provides  for  the  appointment  of  a 
receiver  upon  a  decree  of  dissolution:  Code  1886,  §  1686;  see  2 
Stimson's  Am,  St.  Law,  §§  8332,  8335.  This  statute  has  no  opera- 
tion upon  a  corporation  dissolved  by  adversary  proceeding,  and 
furnishes  no  guide  for  the  interpretation  of  statutory  provisions 
relating  thereto.  §  1691  (Code  1896,  §  1299)  provides  that  trustees 
shall  settle  the  affairs  of  a  dissolved  corporation  unless  other  per- 
sons are  appointed  by  a  court  of  competent  authority.  This  section 
neither  enlarges  nor  restricts  the  inherent  power  of  the  courts  to  ap- 
point a  receiver  for  a  corporation  which  has  been  dissolved  by  quo 
warranto  proceedings,  except  so  far  as  it  renders  such  appointment, 
in  most  cases,  unnecessary:  Weatherly  v.  Capital  City  Water  Co., 
115  Ala.  156,  22  South.  140.  "The  manifest  general  purpose  of  the 
legislature  was  to  commit  the  affairs  and  properties  of  a  corporation 
so  dissolved  to  the  persons  who  were  its  managers  at  the  time  of 
the  dissolution;  but  the  law-makers  recognized  that  there  might  be 
special  circumstances  or  peculiar  exigencies  in  a  given  case  which 
would  breed  a  necessity  to  take  the  corporate  affairs  and  property 
out  of  the  hands  of  such  managers,  and,  to  exclude  any  idea  that  the 
statutory  designation  of  trustees  should  have  the  effect  of  ousting 
the  ordinary  jurisdiction  of  courts  of  chancery  to  appoint  receivers 


I  12T  EQUITABLE     REMEDIES.  234 

upon  such  circumstances  on  exigencies  being  made  to  appear,  they 
expressly  saved  this  jurisdiction,   though   doubtless   such   reservation 

was  in  fact  unnecessary The  rule  is  created  by  the  act.     The 

exception  exists  apart  from  the  act,  and  is  merely  recognized  by  it. 
This  mere  recognition  in  and  of  itself  neither  adds  to  nor  takes 
from  the  powers  of  the  courts.  It  neither  confers  upon  them  au- 
thority which  they  had  not  before,  nor  takes  from  them  authority 
which  they  had  before,  to  appoint  receivers,  except  only  that  the 
affirmative  provision  of  the  act,  committing  the  estate  of  the  cor- 
poration to  those  who  were  its  managers  at  the  time  of  dissolution, 
as  trustees  for  its  creditors  and  bondholders,  emasculates  the  mere 
fact  of  dissolution,  so  far  as  it  might  otherwise  have  been  considered 
as  a  ground  for  such  intervention  of  the  courts,  since  the  statutory 
creation  of  these  trustees  of  the  assets  and  concerns  of  the  defunct 
corporation  supplies  the  means  of  settling  its  affairs,  which,  in  the 
absence  of  a  statute,  could  probably  be  furnished  only  through  the 
appointment  of  a  receiver.  So  that  under  the  statute  a  bill  pray- 
ing the  appointment  of  a  receiver  must  aver  facts  which,  upon  gen- 
eral principles  of  equity  jurisprudence  and  procedure,  would  call 
into  exercise  the  power  of  the  court  to  the  end  sought.  A  state  of 
things  must  be  alleged  which  imports  a  necessity  for  the  appoint- 
ment of  a  receiver The  facts  alleged  must  be  of  a  character 

to  show  that  the  trustees  are  incompetent  or  unfaithful,  or  are  mis- 
managing the  property  to  the  injury  of  the  complainant,  or  are 
without  power  and  authority  to  subserve  some  peculiar  interest  or 
right  of  the  party  complaining,  and  that  he  is  being  injured  thereby, 
or  other  like  situation";  citing  Havemeyer  v.  Superior  Court,  84 
Cal,  327,  18  Am.  St.  Rep.  192,  24  Pac.  121,  10  L.  R.  A.  627;  New 
Foundland  R.  R.  Construction  Co.  v.  Schack,  40  N.  J.  Eq.  222,  1 
Atl.  23.  See,  also,  Anderson  v.  Buckley,  126  Ala.  623,  28  South. 
729;  s.  c,  on  second  appeal,  Buckley  v.  Anderson,  137  Ala.  325,  34 
South.  238. 

California. — The  provisions  of  the  Code  of  Civil  Procedure  relating 
to  receivers  of  corporations  are: 

§  564,  "A  receiver  may  be  appointed  by  the  court  in  which  an 
action  is  pending,  or  by  the  judge  thereof:  ....  5.  In  the  cases 
where  a  corporation  has  been  dissolved,  or  is  insolvent,  or  in  im- 
minent danger  of  insolvency,  or  has  forfeited  its  corporate  rights." 
§  565.  (Amendment  of  1880):  "Upon  the  dissolution  of  any  cor- 
poration, the  superior  court  of  the  county  in  which  the  corporation 
carries  on  its  business  or  has  its  principal  place  of  business,  on  ap- 
plication of  any  creditor  of  the  corporation,  or  of  any  stockholder 
or  member  thereof,  may  appoint  one  or  more  persons  to  be  receivers 
or  trustees  of  the  corporation,  to  take  charge  of  the  estate  and  effects 
thereof,  and  to  collect  the  debts  and  property  due  and  belonging  to 
the   corporation,   and   to   pay   the   outstanding   debts   thereof,   and   to 


235     APPOINTMENT  OF  KECEIVERS  OF  CORPORATIONS.    §  127 

divide  the  moneys  and  other  property  that  shall  remain  over  among 
the  stockholders  or  members." 

In  the  "French  Bank  Case"  (La  Societe  Franeaise  etc.  v.  Dis- 
trict Court),  53  Cal.  495,  it  was  held  that  subd.  5  of  §  564,  supra^ 
did  not  warrant  the  appointment  of  a  receiver  at  the  suit  of  a  stock- 
holder or  creditor  for  the  purpose  of  winding  up  the  affairs  of  an 
insolvent  corporation;  that  this  subdivision  created  no  cause  of  ac- 
tion for  such  a  purpose.  It  was  pointed  out  that  the  New  York 
statute    from    which    this    provision    was    copied     (N.    Y.    Code    of 

Procedure,  §  244)  read:  "A  receiver  may  be  appointed (4)  In 

the  cases  provided  in  this  code  and  by  special  statutes,  where  a  cor- 
poration has  been  dissolved,  or  is  insolvent,"  etc.;  that  such  pro- 
vision existed  in  the  code  and  statutes  of  New  York,  while,  except 
in  §  564,  the  codes  and  statutes  of  California  were  silent  on 
the  subject  of  the  appointment  of  receivers.  The  arguments  of  the 
eminent  counsel  engaged  in  this  case  are  of  much  interest.  See, 
also,  Fischer  v.  Superior  Court,  110  Cal.  129,  141,  42  Pac.  561. 

The  opinion  of  Beatty,  C.  J.,  in  Havemeyer  v.  Superior  Court,  84 
Cal.  327,  342-389,  18  Am.  St.  Rep.  192,  24  Pac.  121,  10  L.  R.  A,  627, 
is  by  far  the  longest  and  most  elaborate  to  be  found  in  any  report 
on  the  subject  of  the  appointment  of  receivers  of  corporations.  The 
proceeding  was  an  application  for  a  writ  of  prohibition  to  a  court 
which  had  appointed  a  receiver  of  the  property  of  a  corporation  in 
a  quo  warranto  proceeding  upon  judgment  of  forfeiture  of  its  cor- 
porate charter.  The  following  abstract  of  the  opinion,  so  far  as  it 
deals  with  this  subject,  follows  the  order  of  discussion  in  the  opin- 
ion instead  of  the  reporter's  syllabus.  After  conceding  the  inherent 
power  of  a  court  of  equity,  in  the  absence  of  any  statute  regulating 
the  matter,  in  a  proper  proceeding  instituted  by  a  creditor  or  a 
etdckholder,  to  appoint  a  receiver  to  administer  the  property  of  a 
defunct  corporation  (p.  362),  §  400  of  the  Civil  Code  (the  usual  pro- 
vision making  the  directors  of  the  dissolved  corporation  managers 
of  its  affairs  and  trustees  for  the  creditors  and  stockholders,  with 
full  power  of  settlement;  see  ante,  §  123)  is  declared  to  establish 
the  general  policy  of  the  state  with  reference  to  winding  up  the 
affairs  of  a  corporation  in  all  cases  of  dissolution,  whether  volun- 
tary or  involuntary;  and  the  wisdom  of  this  policy  is  earnestly  de- 
fended. (P.  365:)  "Under  our  codes,  on  the-  contrary,  the  rule  is 
not  to  appoint  a  receiver,  but  to  leave  the  whole  matter  of  liquidation 
and  distribution  to  the  exclusive  control  of  the  directors  of  the 
corporation  in  office  at  the  date  of  dissolution.  The  appointment  of 
a  receiver  is  the  exception,  not  the  rule,  and  is  not  to  be  made  un- 
less some  party  interested,  either  a  creditor  or  a  stockholder,  can 
show  that  for  the  protection  of  his  rights  the  appointment  of  a 
receiver  and  the  administration  of  the  assets  under  the  control  and 
superintendence  of  a  court  of  equity  is  necessary."     In  reply  to  the 


§   127  EQUITABLE     REMEDIES.  236 

suggestion  of  absurdity  in  thus  interpreting  the  legislation  so  as  to 
leave  to  directors  convicted  of  violating  their  duty  to  the  state  the 
trust  of  administering  and  distributing  the  assets  of  the  dissolved 
corporation,  the  court  uses  this  vigorous  language  (p.  3G9):  "We  con- 
fess there  does  not  appear  to  us  to  be  any  absurdity  in  this  supposi- 
tion. Because  a  corporation  has  violated  its  duty  to  the  public,  it 
does  not  follow  that  its  members  cannot  be  trusted  to  look  out  for 
their  own  interests.  Quite  the  contrary;  for  it  is  usually  a  too  ex- 
clusive regard  for  their  own  interests  that  constitutes  their  derelic- 
tion to  the  public.  As  to  creditors,  their  interests  must  in  most 
cases  be  opposed  to  the  appointment  of  a  receiver.  They  will  be 
paid  more  quickly  and  more  certainly  without  a  receiver  than  with 
one.  If  there  is  any  one  thing  more  certain  than  another,  it  is 
that  the  appointment  of  a  receiver  implies  a  material  diminution  of 
the  fund  out  of  which  creditors  are  to  be  paid.  For,  in  the  first 
place,  the  fees  of  the  receiver,  his  counsel,  and  assistants,  are  to 
be  subtracted.  Then  the  estate  must,  in  many  cases,  as  it  has  been 
in  this  case,  be  condemned  to  unproductive  idleness  and  disuse, 
and  exposed  to  danger  of  loss  and  dilapidation  from  rust  and  decay 
during  the  long  and  tedious  progress  of  the  legal  proceedings  that 
are  necessarily  entailed.  And  all  this  time  the  creditors  must  wait 
and  look  on,  while  the  fund  upon  which  they  rely  for  payment  is 
being  depleted  by  the  processes  above  referred  to.  On  the  other 
hand,  supposing  the  affairs  of  the  defunct  corporation  to  be  under 
the  control  of  its  late  directors  as  trustees  for  its  creditors  and 
stockholders,  the  creditors  have  nothing  to  do  but  present  their  de- 
mands and  receive  payment  in  the  ordinary  course  of  business,  or 
if  payment  is  refused  or  delayed,  they  may  proceed  to  enforce  their 
demands.  How  much  better  this  is  for  the  creditors  than  to  have 
to  wait  upon  the  motions  of  a  receiver  and  the  court,  under  whose 
order  he  acts,  everyone  knows  who  has  had  any  experience  of  the 
two  methods  of  settling  the  business  of  a  partnership  or  a  corpora- 
tion. And  then  it  is,  as  we  have  seen,  always  at  the  option  of  a 
creditor  or  a  stockholder  to  have  a  receiver,  if  they  can  allege  facts 
showing  that  a  receiver  is  necessary."  The  contention  that  the  peo- 
ple of  the  state  have  an  interest  in  the  appointment  of  a  receiver, 
whenever  the  charter  of  a  corporation  has  been  forfeited,  was  met 
(p.  374)  by  a  reference  to  the  express  enumeration,  in  §  565  (supra), 
of  creditors  and  stockholders  as  the  persons  who  are  entitled  to  apply 
for  a  receiver  in  such  circumstances,  and  by  the  argument  (pp.  375 
et  seq.)  that  a  receivership  is  not  designed  or  prescribed  by  the  legis- 
lature as  a  penalty  or  part  of  the  punishment  to  be  visited  upon  the 
stockholders  of  the  corporation  in  a  proceeding  in  quo  warranto;  but 
that  the  punishment  is  limited  to  the  forfeiture  of  the  charter,  and 
the  fine  which  the  court  may  in  its  discretion  impose;  and  that  the 
court  cannot  further  affect  the  corporate  property  by  its  judgment, 


237     APPOINTMENT  OF  EECEIVEES  OF  CORPORATIONS.    §  127 

or  confiscate  or  take  it  away  from  the  stockholders.  (P.  377:)  "If 
it  is  really  true  that  our  laws,  as  they  are  written,  provide  no  ade- 
quate punishment  for  corporate  transgressions,  let  the  legislature 
take  the  matter  in  hand.  It  is  no  part  of  the  function  of  a  court 
to  supply  the  want  of  penal  legislation."  (P.  379:)  "What  is  for- 
feited to  the  state,  and  all  that  is  forfeited,  is  the  charter — the  right 
to  be  a  corporation;  and  this  is  resumed  solely  upon  the  ground 
that  the  condition  upon  which  it  was  granted  has  been  violated. 
The  doctrine  is,  that  corporate  charters  are  granted  upon  the  implied 
condition  that  the  privilege  conferred  will  be  used  for  the  advan- 
tage, or  at  least  not  to  the  disadvantage,  of  the  state.  If  this  con- 
dition is  broken,  the  charter  which  the  state  has  given  is  taken 
back  by  the  state;  but  the  property  which  the  corporation  has  ac- 
quired with  its  own  means  goes  to  those  who  have  paid  for  it,  and 
they  have  the  right  to  deal  with  it  just  as  others  similarly  situated 
may  deal  with  their  property.  Whatever  the  law  prevents  other 
natural  persons  from  doing  they  are  prevented  from  doing, — nothing 
more."  The  conclusion  is  reached  (p.  380)  that  the  rendition  of  the 
judgment  authorized  by  the  statute  in  quo  warranto  proceedings 
(viz.,  exclusion  from  the  franchises,  and  a  fine)  ends  the  proceedings, 
and  that  no  receiver  of  the  corporate  property  can  be  appointed  un- 
less a  new  and  distinct  proceeding  is  commenced  by  a  creditor  or 
stockholder  of  the  corporation,  under  §  565  of  the  Code  of  Civil 
Procedure  (supra). 

The  Havemeyer  case  has  been  followed  in  State  Investment  and 
Insurance  Co.  v.  Superior  Court,  101  Cal.  135,  35  Pac.  549,  holding 
(p.  148)  that  "the  power  of  a  court  to  appoint  any  persons  in  the 
place  of  those  who  are  directors  of  the  corporation  at  the  time  of 
its  dissolution  is  given  in  §  565  of  the  Code  of  Civil  Procedure,  and 
the  authority  given  therein  is  the  measure  of  its  power";  in  Yore 
v.  Superior  Court,  108  Cal.  431,  41  Pac.  477,  holding  that  the  "dis- 
solution" which  is  a  prerequisite  to  the  appointment  means  the 
exclusion  of  the  corporation  from  the  franchise  of  being  a  corpora- 
tion, not  merely  from  the  franchise  of  making  certain  contracts; 
and  in  People  v.  Union  Building  &  Loan  Assn.  (Cal.),  58  Pac.  822, 
holding  that  a  receiver  should  not  be  appointed  in  the  absence  of 
any  fraud  or  mismanagement  on  the  part  of  the  directors  or  of- 
ficers of  the  corporation,  or  any  want  of  competency  on  their  part 
to  liquidate  and  settle  up  its  affairs  economically  and  in  the  interest 
of  its  creditors  and  stockholders.  See,  also,  Murray  v.  American 
Surety  Co.,  ,70  Fed.  341,  17  C.  C.  A.  138,  affirming  59  Fed.  345,  and 
61  Fed.  273. 

Georgia.— For  cases  construing  the  "Insolvent  Traders'  Act," 
(Code,  §§  3149a  et  seq.J,  whereby  the  assets  of  an  insolvent  corpora- 
tion are  subject  to  seizure  under  a  creditors'  bill,  see  Hale-Berry 
Co.  V.  Diamond  State  Iron  Co.,  94  Ga.  61,  22  S.  E.  217;  National  Bank 


S  127  EQUITABLE     REMEDIES.  238 

of  Augusta  V.  Richmond  Factory,  91  Ga.  2S1,  18  S.  E.  160  (corpora- 
tion need  not  be  a  "trader"). 

Idaho.— In  Security  Savings  &  Trust  Co.  v.  Piper,  40  Pac.  144,  it 
•was  held  that  a  receiver  may  be  appointed  pending  proceedings  for 
the  voluntary  dissolution  of  a  corporation,  by  virtue  of  a  provision 
identical  with  §  564,  subd.  5,  of  the  California  Code  of  Civil  Pro- 
cedure, supra.  The  French  Bank  Case,  53  Cal.  550,  was  distin- 
guished by  the  fact  that  there  the  suit  was  by  a  private  individual 
against  the  corporation,  while  in  the  case  at  hand  the  action  was 
by  the  officers  of  the  corporation,  duly  authorized  by  the  stock- 
holders. In  Gibbs  v.  Morgan  (Idaho),  72  Pac.  733,  it  was  distinctly 
held  that  this  code  provision  was  not  intended  as  an  exhaustive 
enumeration  of  the  cases  in  which  a  receiver  of  a  corporation  might 
be  appointed. 

Illinois. — Rev.  Stats.  1893,  c.  32,  §  25:  "If  any  corporation  or  its 
authorized  agents  shall  do,  or  refrain  from  doing,  any  act  which 
shall  subject  it  to  a  forfeiture  of  its  charter  or  corporate  powers, 
or  shall  allow  any  execution  or  decree  of  any  court  of  record,  for 
a  payment  of  money,  after  demand  made  by  the  officer,  to  be  re- 
turned 'No  property  found,'  or  to  remain  unsatisfied  for  not  less 
than  ten  days  after  such  demand,  or  shall  dissolve  or  cease  doing 
business,  leaving  debts  unpaid,  suits  in  equity  may  be  brought 
against  all  persons  who  were  stockholders  at  the  time,  or  liable  in 
any  way,  for  the  debts  of  the  corporation,  by  joining  the  corpora- 
tion in  such  suits;  and  each  stockholder  may  be  required  to  pay  his 
pro  rata  share  of  such  debts  or  liabilities  to  the  extent  of  the  unpaid 
portion  of  his  stock,  after  exhausting  the  assets  of  such  corporation. 
And  if  any  stockholder  shall  not  have  property  enough  to  satisfy  his 
portion  of  such  debts  or  liabilities,  then  the  amount  shall  be  divided 
equally  among  all  the  remaining  solvent  stockholders.  And  courts 
of  equity  shall  have  full  power,  on  good  cause  shown,  to  dissolve  or 
close  up  the  business  of  any  corporation,  to  appoint  a  receiver 
thereof  who  shall  have  authority,  by  the  name  of  the  receiver  of 
such  corporation  (giving  the  name),  to  sue  in  all  courts  and  do  all 
things  necessary  to  closing  up  its  affairs,  as  commanded  by  the  de- 
cree of  such  court."  It  is  held  that  the  "good  cause"  which  must 
be  shown  to  warrant  the  appointment  of  a  receiver  and  the  dissolu- 
tion of  the  corporation  means  some  one  or  more  of  the  causes  men- 
tioned in  the  first  sentence:  People  v.  Weigley,  155  111.  491,  40  N. 
E.  300;  Wheeler  v.  Steel  Co.,  143  111.  197,  32  N.  E.  42^0,  17  L.  R. 
A.  818;  Hunt  v.  Skating  Rink  Co.,  143  111.  118,  32  N.  E*  525.  "To 
justify  the  appointment  of  a  receiver  upon  a  bill  filed  under  this 
section,  something  more  is  necessary  than  a  mere  allegation  that  it 
has  'ceased  doing  business.'  It  must  be  shown  that  such  cessation 
has  been  for  such  time  that  the  court  may  infer  more  than  a  tern- 


239     APPOINTMENT  OF  EECEIVEES  OF  CORPORATIONS.    §  127 

porary  suspension;  or  facts  must  be  set  forth  from  which  it  appears 
that  the  suspension  is  more  than  an  interruption  of  its  usual  course 
by  reason  of  some  emergency":  Brabrook  Tailoring  Co.  v.  Beld- 
ing  Bros.,  40  111.  App.  326. 

Indiana.— In  §  1236,  Rev.  Stats.  1894  (§  1222,  Rev.  Stats.  1881), 
clause  3,  it  is  provided  that  a  receiver  may  be  appointed  where  the 
property  in  controversy  is  in  danger  of  being  "materially  injured"; 
in  clause  5,  where  a  corporation  "has  been  dissolved,  or  is  insolvent, 
or  in  imminent  danger  of  insolvency,  or  has  forfeited  its  corporate 
rights";  and  in  clause  7,  when,  in  the  discretion  of  the  court  or  the 
judge  in  vacation,  "it  may  be  necessary  to  secure  ample  justice  to 
the  parties."  Goshen  Woolen  Mills  Co.  v.  City  Nat.  Bank,  150  Ind. 
279,  49  N.  E.  154.  It  is  held  in  this  case  that  a  receiver  may  be 
appointed  on  the  application  of  a  creditor  where  the  corporation 
has  assigned  property  for  the  benefit  of  certain  creditors,  although 
no  fraud  is  shown  in  such  assignment,  when  the  complaint  contains 
allegations  as  to  material  injury  to  the  property,  and  as  to  the  in- 
solvency of  the  corporation  and  the  want  of  business  capacity  and 
financial  responsibility  on  the  part  of  those  left  in  charge  of  its 
affairs  by  the  nominal  trustee.  In  Supreme  Sitting  of  the  Order  of 
Iron  Hall  v.  Baker,  134  Ind.  293,  33  N.  E.  1128,  20  L.  R.  A.  210,  it 
was  held  that  under  clause  5,  supra,  the  court  had  jurisdiction  to 
appoint  a  receiver  of  a  corporation  alleged  to  be  insolvent  in  a  suit 
to  secure  an  accounting  of  the  officers,  and  the  application  of  the 
funds  to  the  proper  objects  of  the  corporation.  A  further  statute 
(Rev.  Stats.  1881,  §  3012;  Rev.  Stats.  1894,  §  3435)  authorizes,  on 
the  application  of  any  creditor  or  stockholder,  the  appointment  of  a 
receiver  for  a  corporation  whose  charter  has  expired  within  the 
three  years  thereafter  allowed  by  statute  for  the  winding  up  of  its 
affairs.  This  statute,  it  is  held,  does  not  require  the  appointment 
to  be  made  before  the  expiration  of  the  three  years,  if  the  applica- 
tion is  made  within  the  three  years:  Lime  City  Bldg.,  Loan  &  Sav. 
Assn.  v.  Black,  136  Ind.  544,  35  N.  E.  829;  Hatfield  v.  Cummings,  140 
Ind.  547,  40  N.  E.  53. 

Iowa.— The  Code,  §  2903,  provides:  "On  the  petition  of  either 
party  to  a  civil  action  or  proceeding,  wherein  he  shows  that  he  has 
a  probable  right  to  or  interest  in  any  property,  which  is  the  subject 
of  the  controversy,  and  that  such  property  or  its  rents  or  profits 
are  in  danger  of  being  lost  or  materially  injured  or  impaired,  .... 
the  court,  or  in  vacation,  the  judge  thereof,  if  satisfied  that  the 
interests  of  one  or  both  parties  will  be  thereby  promoted,  and  the 
substantial  rights  of  neither  unduly  injured,  may  appoint  a  re- 
ceiver to  take  charge  of,  and  control  such  property  under  its  direc- 
tion during  the  pendency  of  the  action."  In  Dickerson  v.  Cass 
County  Bank,   95  Iowa,   392,  64  N.  W.   395,   it  was   held   that   under 


§  127  EQUITABLE     REMEDIES.  240 

this  section  the  court  has  power  to  appoint  a  receiver  of  a  state 
banking  corporation  on  the  application  of  a  stockholder.  His  stat- 
utory liability  to  the  creditors  constitutes  a  "probable  right  to  or 
interest  in"  the  property,  if  his  petition  shows  that  there  will  be  no 
surplus  for  distribution  to  the  stockholders;  and  a  showing  that 
the  bank  was  insolvent  and  that  those  in  charge  of  it  were  con- 
tinuing the  business  at  a  loss,  and  had  allowed  the  assets  to  become 
of  such  a  character,  and  so  scattered,  that  they  could  not  readily 
be  realized  on  without  great  sacrifice,  supplies  the  remaining  ele- 
ments required  by  this  section.  Statutes  providing  for  ousting  cor- 
porations from  their  franchises  and  winding  up  their  affairs  do  not 
exclude  any  rights  given  to  private  individuals  under  this  general 
statute. 

Louisiana. — By  act  of  1898,  No.  159,  §  1,  par.  2,  the  "civil  district 
court  of  the  parish  of  Orleans  is  empowered  to  appoint  receivers 
to  take  charge  of  the  property  and  business  of  corporations  .... 
at  the  instance  of  any  stockholder  or  creditor  when  the  directors  or 
other  officers  of  the  corporation  are  jeopardizing  the  rights  of  stock- 
holders or  creditors  by  grossly  mismanaging  the  business,  or  by 
committing  acts  ultra  vires,  or  by  wasting,  misusing,  or  misapplying 
the  property  or  funds  of  the  corporation."  For  facts  requiring  the 
appointment  of  a  receiver  at  the  instance  of  stockholders  under  this 
statute,  see  Sincer  v.  Alverson,  51  La.  Ann.  951,  25  South.  650;  for 
the  meaning  of  "grossly  mismanaging,"  see  North  American  L. 
Ss  T.  Co.  V.  Watkins,  109  Fed.  101,  48  C.  C.  A.  254. 

Michigan — How.  Stats.,  c.  281,  §  6,  provides:  "Whenever 
judgment  at  law  or  decree  in  chancery  shall  be  obtained  against  any 
corporation  incorporated  under  the  laws  of  this  state,  and  an  execu- 
tion issued  thereon  shall  have  been  returned  unsatisfied,  in  part  or 
in  whole,  upon  the  petition  of  the  person  obtaining  such  judgment 
or  decree,  or  his  representatives,  the  circuit  court  within  the  proper 
county  may  sequestrate  the  stock,  property,  things  in  action,  or 
effects  of  such  corporation,  and  may  appoint  a  receiver  of  the  same." 
See  this  section  applied  in  Turnbull  v.  Prentiss  Lumber  Co.,  55 
Mich.  387,  21  N.  W.  375. 

Minnesota. — Gen.  Stats.,  c.  76,  §  9,  gives  judgment  creditors  the 
right  to  the  appointment  of  a  receiver  of  the  corporate  property 
and  effects  in  aid  of  their  judgments  after  execution  returned  un- 
satisfied. It  is  held  that  the  return  of  the  execution  unsatisfied  by 
the  sheriff  is  conclusive,  so  long  as  it  remains  of  record  in  force,  as 
respects  the  judgment  creditor's  right  to  a  receiver,  and  that  the 
court  will  not  entertain  inquiries  as  to  the  diligence  of  the  ofiicer 
in  endeavoring  to  find  property  upon  which  to  levy.  If  there  is 
any  good  ground  for  setting  aside  the  return  of  the  ofiicer,  because 
of  its  falsity,  the  defendant  in  execution  should  apply  directly  to  the 


£41     APPOINTMENT  OF  EECEIVERS  OF  CORPORATIONS.    §  127 

court  on  motion.  See,  further,  as  to  the  necessity  of  exhausting  the 
legal  remedies  of  the  creditor,  Klee  v.  E.  H.  Steele  Co.,  60  Minn. 
S55,  62  N.  W.  399.  A  receivership  in  a  suit  to  foreclose  a  mortgage 
on  property  of  a  corporation  will  not  prevent  another  receivership, 
under  this  same  chapter,  to  sequestrate  all  the  property  of  the  cor- 
poration for  the  benefit  of  all  its  creditors.  "The  powers  of  the 
receivers  in  the  two  cases  are  entirely  different.  There  are  various 
classes  of  property  that  can  be  reached  by  a  receiver  under  chapter 
76  which  could  not  be  reached  by  a  receiver  appointed  in  a  fore- 
closure suit.  The  former  has  substantially  all  the  powers  and 
functions  of  an  assignee  in  bankruptcy":  St.  Louis  Car  Co.  v.  Still- 
water St.  Ry.  Co.,  53  Minn.  129,  54  N.  W.  1064.  And  where  a  cred- 
itor has  commenced  an  action  under  this  chapter,  an  assignment  by 
the  corporation  under  the  insolvent  law  will  not  defeat  or  impair 
Ms  right  to  a  receivership:  State  v.  Bank  of  New  England,  55 
Minn.  139,  56  N.  W.  575;  but  where,  at  the  time  of  commencing 
such  action  an  assignee  in  insolvency,  previously  appointed,  has  for 
some  time  been  actively  engaged  in  collecting  the  assets  of  the  cor- 
poration and  converting  them  into  cash,  the  plaintiff  creditor  is  not 
entitled,  as  a  matter  of  absolute  right,  to  have  a  receiver  appointed: 
Walther  v.  Seven  Corners  Bank,  58  Minn,  434,  59  N.  W.  1077;  In- 
ternational Trust  Co.  v.  American  Loan  etc.  Co.,  62  Minn.  501,  65 
N.  W.  78,  632.  As  to  what  constitutes  "insolvency"  of  a  building 
and  loan  association  under  this  chapter,  see  Sjoberg  v.  Security  Sav- 
ings and  Loan  Assn.,  73  Minn.  203,  72  Am.  St,  Rep.  616,  75  N.  W. 
1116. 

Neiw  Jersey. — Cases  under  the  New  Jersey  statute  conferring  power 
«Mi  the  courts  of  equity  to  dissolve  and  wind  up  an  insolvent  corpora- 
tion are  of  more  than  local  interest.  The  power  "was  conferred  by 
a  statute  passed  in  1829  [Act  of  February  16th],  and  the  language 
by  which  it  was  conferred  has  remained  unchanged  from  that  time 
to  the  present  [1892],  Elmer,  Dig.,  p.  32,  §§'  11,  13;  Revision,  p. 
189,  §§  70,  72,  This  statute  empowers  the  chancellor,  on  the  ap- 
plication of  a  creditor  or  stockholder,  alleging  that  the  corporation 
in  which  he  is  interested  has  become  insolvent,  to  proceed  in  a 
summary  way  to  inquire  into  the  truth  of  such  allegation,  and  if, 
upon  such  inquiry,  it  shall  be  made  to  appear  that  the  corporation 
has  become  insolvent,  and  shall  not  be  about  to  resume  its  business 
in  a  short  time,  with  safety  to  the  public  and  advantage  to  the 
stockholders,  he  may  enjoin  it  from  the  further  exercise  of  its  fran- 
chises, and  also  from  the  further  transaction  of  business;  and  he 
may  also,  at  the  same  time,  or  at  any  subsequent  time  during  the 
continuance  of  the  injunction,  if,  in  his  judgment,  the  circumstances 
of  the  case  and  the  ends  of  justice  require,  appoint  a  receiver  to 
dispose  of  its  assets  and  distribute  the  proceeds":  Atlantic  Trust 
Co.  V.  Consolidated  Electric  Storage  Co.,  49  N.  J.  Eq.  402,  23  AtL 
Equitable  Remedies,  Vol.  1—16 


Ji  127  EQUITABLE     REMEDIES.  242 

934.  "The  ordering  of  the  statutory  injunction  which  places  the 
corporation  under  disabilities  with  reference  to  the  exercise  of  its 
franchises,  is  the  jurisdictional  fact — the  condition  precedent — which 
must  occur  before  any  statutory  receiver  can  be  appointed":  Gal- 
lagher V.  Asphalt  Co.  of  America   (N.  J.  Eq.),  58  Atl.  403. 

It  was  held  in  Parsons  v.  Monroe  Manufacturing  Co.,  4  N.  J.  Eq. 
187,  206,  that  "the  foundation  of  this  whole  proceeding  [under 
the  act  of  February  16,  1829]  must  rest  on  the  question  of  insol- 
vency; for  unless  that  is  satisfactorily  made  out,  the  court  has  no 
jurisdiction;  and  when  made  out,  there  still  resides,  and  must  reside 
in  the  chancellor,  a  discretion  as  to  the  ordering  of  the  injunction 
and  the  appointment  of  receivers,  to  be  governed  by  the  facts  of 
the  case."  The  court  is  authorized  by  this  act  to  appoint  receivers 
at  the  time  of  declaring  the  company  insolvent  and  ordering  an  in- 
junction, "if  the  circumstances  of  the  case  and  the  ends  of  justice 
require  it."  It  does  not  follow,  therefore,  that  because  an  injunc- 
tion is  granted,  receivers  should  be  appointed:  Oakley  v.  Paterson 
Bank,  2  N.  J.  Eq.  178;  Eawnsley  v.  Trenton  Mutual  Life  Ins.  Co., 
9  N.  J.  Eq.  347,  350;  Nichols  v.  Perry  Patent  Arm  Co.,  11  N.  J.  Eq. 
126;  Newfoundland  R.  R.  Construction  Co.  v.  Sehack,  40  N.  J.  Eq. 
222,  1  Atl.  23;  and  the  appointment  will  not  be  made  where  the 
protection  of  the  public  and  the  interest  of  the  creditors  and  the 
stockholders  does  not  require  it,  where,  on  the  contrary,  no  one  who 
is  a  stranger  to  the  extensive  business  of  the  company  can  advan- 
tageously wind  up  its  concerns  and  where  the  charges  of  fraud 
against  the  directors  are  not  sustained;  in  such  a  case  the  manage- 
ment will  be  left  in  the  hands  of  the  directors,  under  the  immediate 
control  and  direction  of  the  court:  Eawnsley  v.  Trenton  Mutual 
Life  Insurance  Co.  Still,  as  a  general  rule,  where  there  is  a  decree 
of  insolvency,  receivers  will  be  appointed;  and  where  it  appears 
that  after  the  insolvency  of  the  company  was  beyond  dispute,  and 
well  known  to  all  the  directors,  unlawful  sales  of  all  the  company's 
property  were  made  to  various  directors,  no  discretion  is  left  to  the 
court,  and  the  appointment  is  a  matter  of  duty:  Nichols  v.  Perry 
Patent  Arm  Co.,  11  N.  J.  Eq.  126.  Where  the  directors  of  the  in- 
solvent corporation  are  winding  up  its  affairs,  where  they  are  men 
of  property  and  of  experience  in  business,  and  there  is  every  rea- 
son to  believe  that  their  closing  of  the  enterprise  will  be  more  ad- 
vantageous to  the  stockholders  and  creditors  than  the  management 
of  a  stranger  in  this  respect  would  be  likely  to  prove,  and  all  the 
creditors  and  stockholders  of  the  company,  with  the  single  excep- 
tion of  the  petitioner,  are  satisfied  with  the  management,  an  order 
appointing  a  receiver  should  be  reversed:  City  Pottery  Co.  v.  Yates, 
37  N.  J.  Eq.  543. 

On  the  question  of  the  necessity  of  showing  insolvency,  the  opin- 
ion of  Van  Fleet,  V,  C,  in  Atlantic  Trust  Co.  v.  Consolidated  Electric 


243     APPOINTMENT  OF  EECEIVERS  OF  CORPORATIONS.    §  127 

Storage  Co.,  49  N.  J.  Eq.  402,  23  Atl.  934,  is  valuable.  "The  statute 
makes  insolvency  the  jurisdictional  fact.  The  court  can  do  nothing — 
neither  issue  an  injunction  nor  appoint  a  receiver — until  insolvency 
is  first  established  [citing  Oakley  v.  Bank,  supra;  Parsons  v.  Manu- 
facturing Co.,  supra;  Brendred  v.  Machine  Co.,  4  N.  J.  Eq.  294,  305; 
and  Goodheart  v.  Mining  Co.,  8  N.  J.  Eq.  73,  77].  And  Mr.  Justico 
Depue,  in  pronouncing  the  opinion  of  the  court  of  errors  and  appeal* 
in  Construction  Co.  v.  Schack,  40  N.  J.  Eq.  222,  226,  1  Atl.  23,  de- 
clared, in  describing  what  averments  a  bill  in  such  a  case  must  con- 
tain, that  it  was  not  sufficient  that  the  bill  should  merely  allega 
that  the  corporation  had  become  insolvent  and  had  suspended  its 
business  for  want  of  funds  to  carry  on  the  same,  but  that  the  facta 
and  circumstances  on  which  the  complainant  relies  to  prove  insol- 
vency must  be  set  out The  proof  in  support  of  a  jurisdictional 

fact  must  always  be  clear  and  convincing,  for  the  court  derives  On 
power  from  the  fact;   and  hence,  until  the  fact  is  shown  to  exist, 

it  has  no  power.     To  doubt  in  such  a  case  is  to  deny Nor  ii 

it  the  duty  of  the  court  to  use  its  power  in  all  cases  where  insol- 
vency is  shown.  Something  more  is  required.  The  prerequisite* 
prescribed  by  the  statute  are  that  it  shall  be  made  to  appear  that 
the  corporation  has  become  insolvent,  and  also  that  it  will  not  b« 
able  to  resume  its  business  in  a  short  time  with  safety  to  the  public 
and  advantage  to  the  stockholders.  The  power  is  only  to  be  used 
when  the  ends  of  justice  require  its  exercise.  The  court  should 
strive  in  such  cases  to  foster  and  preserve,  rather  than  to  strangla 

or    destroy The    principle    which    I    think    should    control    th« 

court  in  the  exercise  of  this  power  is  this:  never  to  appoint  a  re- 
ceiver unless  the  proof  of  insolvency  is  clear  and  satisfactory,  and 
unless  it  also  appears  that  there  is  no  reasonable  prospect  that  th« 
corporation,  if  let  alone,  will  soon  be  placed,  by  the  efforts  of  its 
managers,  in  a  condition  of  solvency.  To  illustrate:  Where  the  cor- 
poration attacked  is  shown  to  be  insolvent,  but  it  also  appears  that 
its  managers  are  honest  and  capable,  and  that  they  are  striving  t* 
the  best  of  their  ability,  with  a  fair  prospect  of  success,  to  relieva 
the  corporation  from  its  embarrassment,  and  to  put  it  in  a  condition 
where  it  may  prosecute  its  business  successfully,  and  the  property 
of  the  corporation  is  free  from  judgment  or  other  lien  under  whick 
it  may  be  sold  speedily,  at  a  sacrifice,  the  court  should  not  inter- 
fere." See,  also,  to  the  same  effect,  Ft.  Wayne  Electric  Corp.  t. 
Franklin  Electric  Light  Co.  (N.  J.),  40  Atl.  441,  57  N.  J.  Eq.  16, 
41  Atl.  217.  The  mere  suspension  of  business  by  the  corporation, 
even  though  it  does  not  appear  that  it  is  about  to  resume  in  a  short 
time,  does  not  afford  sufficient  warrant  for  the  court  to  assume  ju- 
risdiction, when  it  is  not  clearly  established  that  the  corporation  im 
insolvent:  Cook  v.  East  Trenton  Pottery  Co.,  53  N.  J.  Eq.  29,  3# 
Atl.  534.     On  the  other  hand,  while  the  statute  predicates  some  i»- 


S  127  EQUITABLE     REMEDIES.  244 

terruption  of  the  insolvent's  business  as  an  element  of  insolvency, 
it  does  not  contemplate  an  entire  suspension  of  all  its  workings.  An 
insolvent  corporation,  therefore,  is  within  the  scope  of  the  statute, 
although  its  business  is  continuing,  and  receipts  therefore  coming 
into  the  treasury:  Ft.  Wayne  El,  Corp.  v.  Franklin  Electric  Light 
Co.,  57  N.  J.  Eq.  16,  41  Atl.  217;  aflarmed,  58  N.  J.  Eq.  579,  43  AtL 
1098. 

The  statute  authorizing  the  appointment  at  suit  of  any  creditor 
or  stockholder  when  the  corporation  is  insolvent,  creates  a  new  equi- 
table right  which  will  be  enforced  by  the  federal  courts:  United 
States  Shipbuilding  Co.  v.  Conklin,  126  Fed.  132,  60  C.  C.  A.  680. 

Where  a  receiver  is  sought  for  a  corporation  that  has  been  dis- 
solved by  proclamation  of  the  governor,  under  §  56  of  the  Corpora- 
tion Act  of  1896,  the  discretionary  power  of  the  chancellor  is  in- 
voked, and  should  be  exercised  either  to  continue  the  directors  as 
trustees  to  settle  the  corporate  affairs  under  said  section,  or  to  ap- 
point a  receiver  for  that  purpose.  Discretion  to  appoint  a  receiver 
should  not  be  disclaimed  because  of  failure  of  proof  of  breaches  of 
trust  by  the  directors,  since  the  governor's  proclamation;  their  un- 
fitness to  exercise  the  trust  may  also  be  shown  by  proof  of  miscon- 
duct or  breaches  of  trust  previous  thereto,  or  of  incapacity  to  per- 
form the  duties  of  the  trust,  or  of  conduct  indicating  unwillingness 
to  properly  perform  such  duties:  American  Surety  Co.  v.  Great 
White  Spirit  Co.,  58  N.  J.  Eq.  526,  43  Atl.  579. 

See  Settle  v.  Republic  Sav.  &  L.  Assn.,  63  N.  J.  Eq.  578,  53  AtL 
11,  for  an  instance  of  the  appointment  of  a  receiver  for  an  insolvent 
building  and  loan  association  under  a  special  statute  governing  such 
•orporations. 

New  York.— The  provisions  of  the  New  York  statutes  and  Code 
of  Procedure  relating  to  receivers  of  corporations  are  so  numerous, 
and  have  been  subject  to  so  many  changes  that  any  account  of 
them  must  exceed  the  limits  of  an  elementary  treatise.  See,  for  a 
statement  of  these  provisions  as  they  existed  in  1868,  Folger  v. 
Columbian  Ins.  Co.,  99  Mass.  267,  96  Am.  Dec.  747;  in  1892,  2  Stim- 
son's  Am.  Stat.  Law,  §§  8330-8367,  and  addenda.  See,  also,  for  a 
history  of  the  legislation,  United  States  Trust  Co.  v.  New  York, 
W.  8.  &  B.  R.  Co.,  101  N.  Y.  478,  5  N.  E.  316.  The  case  of  Bangs 
V.  Mcintosh,  23  Barb.  591,  has  been  cited  by  courts  and  text-writers 
as  establishing  the  principle  that  the  prescribed  method  of  obtain- 
ing jurisdiction  of  the  person  and  of  the  subject-matter  under  these 
statutes  must  be  strictly  followed;  but  the  published  opinion  in 
that  case  was  not  concurred  in  by  a  majority  of  the  court.  That  a 
creditor  before  judgment  is  not  entitled  to  a  receiver  in  an  action 
for  a  dissolution  of  the  corporation  on  the  ground  of  insolvency, 
see  Galwey  v.  United  States  Steam  Sugar  Refining  Co.,  13  Abb.  Pr. 
211;  Rodbourn  v.  Utica,  L  &  E.  R,  Co.,  28  Hun,  369  (where  the  credi- 


245     APPOINTMENT  OF  RECEIVERS  OF  CORPORATIONS.    §  127 

tor's  judgment  is  opened,  the  order  appointing  the  receiver  should 
be  vacated);  Lehigh  Coal  etc.  Co.  v.  Central  N.  J.  R.  Co.,  43  Hun, 
546.  That  in  proceedings  by  the  attorney -general  for  the  dissolu- 
tion of  a  corporation  and  the  forfeiture  of  its  franchises  the  court 
has  no  power  to  appoint  a  receiver  before  judgment  of  forfeiture,  see 
People  V.  Washington  Ice  Co.,  18  Abb.  Pr.  382.  That  the  provision 
relating  to  the  forfeiture  of  the  corporate  charter  on  the  ground 
of  discontinuance  of  business  for  a  year  contemplates  proceedings 
by  the  attorney-general,  not  by  a  stockholder,  see  Oilman  v.  Green- 
point  Sugar  Co.,  4  Lans.  483.  As  to  the  time  when  the  appointment 
may  be  made  in  proceedings  for  the  voluntary  dissolution  of  a  cor- 
poration, see  Chamberlain  v.  Rochester  S.  P.  V.  Co.,  7  Hun,  557; 
Matter  of  Boynton  Saw  and  File  Co.,  34  Hun,  369  (no  power  to 
appoint  a  temporary  receiver) ;  Re  Hitchcock  Mfg.  Co.,  1  App.  Div. 
164,  37  N.  Y.  Supp.  834.  As  to  the  appointment  of  a  receiver  "to 
carry  the  judgment  into  effect,"  see  King  v.  Barnes,  51  Hun,  550, 
4  N.  Y.  Supp.  247,  affirmed  113  N.  Y.  655,  21  N.  E.  184  (in  aid  of 
judgment  directing  defendants  to  transfer  to  plaintiffs  certain  shares 
of  stock  in  a  corporation,  by  means  of  which  they  had  been  assum- 
ing control  of  the  company  in  fraud  of  plaintiffs'  rights).  It  haa 
been  held  that  Code  Civ.  Proc,  §  1810,  subd.  3,  authorizing  the  ap- 
pointment when  there  is  no  officer  to  take  charge  of  the  assets,  does 
not  apply  when  officers  resign  for  the  purpose  of  having  a  receiver 
appointed:  Zeltner  v.  Zeltner  Brewing  Co.,  174  N.  Y.  247,  95  Am.  St. 
Rep.  574,  66  N.  E.  810. 

Pennsylvania. — In  quo  warranto  proceedings  against  a  corpora- 
tion the  court  has  no  jurisdiction,  upon  motion  of  the  common- 
wealth, to  appoint  a  receiver:  Fraternal  Guardian's  Estate,  159  Pa, 
St.  603,  28  Atl.  479;  Commonwealth  v.  Order  of  Vesta,  156  Pa, 
St.  531,  27  Atl.  14  (construing  act  of  1893). 

Texas. — The  courts  of  Texas  have  several  times  been  called  upon  to 
interpret  a  provision  of  their  statutes  relating  to  the  appointment  of 
receivers  of  corporations  similar  to  that  of  the  California  code,  and 
have  reached  a  conclusion  directly  opposite  to  that  reached  in  Have- 
meyer  v.  Superior  Court,  84  Cal.  327,  18  Am.  St.  Rep.  192,  24  Pae. 
121,  10  L.  R.  A.  627.  In  Texas,  therefore,  under  the  familiar  code 
provision  that  receivers  may  be  appointed  "in  cases  where  a  corpora- 
tion has  been  dissolved,  or  is  insolvent,  or  in  imminent  danger  of  in- 
solvency, or  has  forfeited  its  corporate  rights,"  a  receiver  may  be 
appointed  on  the  application  of  the  state  after  judgment  in  quo  war- 
ranto proceedings  against  the  corporation:  East  Line  &  Red  River  R. 
Co.  V.  State,  75  Tex.  434,  12  S.  W.  690;  Texas  Trunk  R.  Co.  v.  State, 
83  Tex.  1,  18  S.  W.  199;  San  Antonio  Gas  Co.  v.  State,  22  Tex.  Civ. 
App.  118,  54  S.  W.  289.  In  Texas  Trunk  R.  Co.  v.  State,  the  court 
says,  in  speaking  of  this  section  of  the  statute:  "The  fact  that  it 
does  not  limit  the  power  to  appoint,  as  do  the  former  sections  of  th« 


§•  127  EQUITABLE     REMEDIES.  246 

act,  to  cases  in  which  this  is  asked  by  creilitors  or  others  having  a  di- 
rect pecuniary  interest  in  the  subject  matter  to  which  the  receiver- 
ehip  will  relate,  evidences  an  intention  to  confer  upon  the  courts  the 
power  to  appoint  receivers  in  all  cases  to  which  the  law  applies,  when- 
ever the  interest  of  individuals  or  public  interest  may  require  this 
to  be  done.  The  power  of  the  court,  adjudging  the  forfeiture  of  a 
corporate  franchise  and  the  dissolution  of  the  corporation,  to  appoint 
a  receiver  is  too  clear,  and  although  the  state  may  not  be  a  creditor 
the  public  has  such  an  interest  in  the  proper  management  of  the  prop- 
erty of  a  dissolved  railway  company  as  makes  it  proper  that  a  re- 
ceiver should  be  appointed  to  manage  and  control  its  property,  to  the 
end  that  it  shall  be  faithfully  applied  to  the  public  purpose  for  which 
the  corporation  was  originally  created,  and  that  this  should  be  done 
is  the  more  apparent  when  the  mismanagement  or  disregard  of  duty 
on  the  part  of  the  governing  body  of  a  railway  corporation  has  been 
such  as  to  require  its  dissolution."  In  San  Antonio  Gas  Co.  v.  State, 
the  court  observes:  "To  place  the  property  again  in  the  hands  of  the 
officers  of  the  corporation  would  be  to  return  it  to  the  custody  of 
those  who  had  failed  to  perform  their  trust,  and  had  violated  the 
laws  of  the  state,  and  the  public  interests  would  not  be  subserved 
thereby That  the  appointment  of  a  receiver  will  have  the  ef- 
fect of  a  fine  inflicted  upon  the  shareholders  in  the  defunct  corpora- 
tion can  have  no  weight  in  the  decision  of  a  court.  The  statute 
plainly  confides  the  authority  to  the  court  to  make  the  appointment, 
and  that  it  will  bear  heavily  upon  the  shareholders  is  a  matter  for 
legislative,  and  not  judicial,  consideration.  In  this  case  at  least,  the 
riolators  of  the  law  will  be  the  ones  who  will  suffer  from  the  ap- 
pointment of  a  receiver." 

This  statute,  however,  does  not  make  insolvency  or  imminent  dan- 
ger thereof  a  cause  of  action,  and  does  not  entitle  a  stockholder  or 
lien  creditor  of  a  corporation  which  is  still  a  going  concern  to  have 
a  receiver  appointed  on  the  ground  of  its  insolvency,  or  imminent 
danger  of  insolvency,  alone;  but  such  stockholder  must  show,  to  en- 
title himself  to  such  appointment,  that  he  has  a  cause  of  action 
against  the  corporation,  independently  of  the  receivership;  that  the 
•orporation  is  insolvent,  or  in  imminent  danger  thereof;  and  that 
his  interest  as  such  stockholder  requires  the  appointment  to  be  made: 
People's  Investment  Co.  v.  Crawford  (Tex.  Civ.  App.),  45  S.  W.  738; 
Espuela  Land  etc.  Co,  v.  Bindle,  5  Tex.  Civ.  App.  18,  23  S.  W.  819, 
following  French  Bank  Case,  53  Cal.  553;  New  Birmingham  Iron  etc. 
Co.  V.  Blevins,  12  Tex.  Civ.  App.  410,  34  S.  W.  828.  A  receiver  may 
properly  be  appointed  in  a  suit  to  foreclose  a  deed  of  trust  securing 
bonds  of  an  insolvent  corporation:  Childress  v.  State  Trust  Co.  (Tex. 
Civ.  App.),  32  S.  W.  330.  The  jurisdiction  of  the  court  to  appoint  a 
receiver  in  suits  by  creditors  cannot  be  defeated  by  a  transfer  of  the 
property  of  the  insolvent  corporation  to  an  assignee:  Milam  County 
•tc  Allianca  t.  Tennent-Stribling  Shoe  Co.   (Tex.  Civ.  App.),  40  S. 


247     APPOINTMENT  OF  EECEIVERS  OF  COEPORATIONS.    §  127 

W.  331.  It  is  held  not  to  be  essential,  under  the  statute,  that  the 
claim  of  the  creditor  of  an  insolvent  corporation  should  have  become 
a  judgment,  or  that  he  should  have  an  express  lien  upon  the  property 
of  the  corporation:  San  Antonio  &  G.  S.  E.  Co.  v.  Davis  (Tex.  Civ. 
App.),  30  S.  W.  693;  compare  Brenton  &  McKay  v.  Peck  (Tex.  Civ. 
App.),  87  S.  W.  898. 

Washington, — The  usual  code  provision,  that  a  receiver  may  be  ap- 
pointed "where  a  corporation  has  been  dissolved  or  is  insolvent,  or 
is  in  imminent  danger  of  insolvency,  or  has  forfeited  its  corporate 
rights,"  is  interpreted  as  meaning  that  the  court  is  authorized  to 
appoint  such  receiver  whenever  any  of  these  facts  is  made  to  appear, 
at  the  instance  of  any  party  interested.  "No  other  conditions  are 
imposed  by  the  statute,  and  to  import  any  other  would  be  judicial  leg- 
islation." A  receiver  may,  therefore,  be  appointed  on  the  applica- 
tion of  any  creditor  of  the  corporation,  when  its  insolvency  is  estab- 
lished to  the  satisfaction  of  the  court,  and  this,  notwithstanding  that 
the  corporation  has  made  a  voluntary  assignment  for  the  benefit  of 
creditors:  Olson  v.  Bank  of  Tacoma,  15  Wash.  148,  45  Pac.  734.  That 
a  receiver  can  be  appointed  in  an  action  by  the  state  to  exclude  de- 
fendants from  corporate  rights  and  franchises,  only  after  judgment  in 
such  action,  see  State  v.  Superior  Court,  15  Wash.  688,  55  Am.  St. 
Eep.  907,  47  Pac.  31. 

Wisconsin.— Eev.  Stats.,  §  3216,  provides  that  an  action  may  be 
brought  against  a  corporation  by  a  judgment  creditor  after  an  exe- 
cution has  been  returned  unsatisfied  in  whole  or  in  part,  and  the 
court  may  sequester  its  stock,  property,  things  in  action,  and  effects, 
and  appoint  a  receiver.  Section  3217  provides  for  a  just  and  fair  dis- 
tribution of  the  property  among  the  fair  and  honest  creditors,  accord- 
ing to  §  3245.  §  3221  allows  directors  and  stockholders  to  be  made 
parties.  By  §  3226,  stockholders  may  be  adjudged  to  pay  what  is 
due  on  their  unpaid  stock.  By  §  3227,  an  injunction  may  be  issued  to 
restrain  proceedings  by  any  other  creditor  against  the  defendant 
corporation.  Several  other  sections  provide  for  making  the  directors, 
officers,  and  stockholders  parties,  if  in  any  event  they  may  be  liable 
to  the  creditors.  For  instances  of  suits  under  these  sections,  see  Pow- 
ers V.  C.  H.  Hamilton  Paper  Co.,  60  Wis.  23,  18  N.  W.  20;  Ballin  v. 
Loeb,  78  Wis.  404,  47  N,  W.  516,  10  L,  E.  A.  742  (the  suit  may  be 
founded  on  a  judgment  of  the  federal  court  in  the  state) ;  Garden 
City  Bank  etc.  Co.  v.  Geilfuss,  86  Wis.  612,  57  N.  W.  349;  Ford  v. 
Plankinton  Bank,  87  Wis.  363,  58  N,  W.  766.  In  the  last  case  it  was 
held  that  where  a  banking  corporation  has  made  a  valid  voluntarv 
assignment  of  aU  its  assets,  in  the  manner  and  form,  and  to  the 
effect,  prescribed  by  statute,  a  receiver  cannot  be  appointed  under 
these  sections  to  supersede  the  assignment  and  change  the  rule  for 
the  distribution  of  the  proceeds  of  the  assignment  to  the  rule  pre- 
scribed by  statute  in  receivership  cases.     Where,  however,  such  as- 


§  128  EQUITABLE     REMEDIES.  248 

§  128.  Eailroad  Receivers;  in  General. — It  is  not  uncom- 
mon, in  railroad  receivership  cases,  to  find  strong  state- 
ments as  to  tlie  great  reluctance  of  courts  to  undertake 
the  management  of  railroads,  except  in  the  most  urgent 
cases  ;^^^  but  the  experience  of  the  last  twenty-five  years 
has  tended  to  raise  the  question  in  some  minds  whether 
these  expressions  are  to  be  taken  veiy  seriously,  or 
whether  tlie  magnitude  of  the  interests  involved  actu- 
ally does — if,  indeed,  it  should — exercise  any  strong  de- 
terring influence  on  the  action  of  the  courts.^ ^^ 

signment  is  fraudulent,  the  cause  of  action  under  §  3216  is  not  de- 
stroyed, but  rather  strengthened,  by  averments  in  respect  thereto: 
Powers  V.  C.  H.  Hamilton  Paper   Co. 

311  "The  appointment  of  receivers  by  a  court  to  manage  the  aflairs 
of  a  long  line  of  railroad,  continued  through  five  or  six  years,  is  one 
of  those  judicial  powers  the  exercise  of  which  can  only  be  justified 
by  the  presence  of  an  absolute  necessity":  Per  Miller,  J.,  in  Milwau- 
kee &  Minnesota  R.  Co.  v.  Soutter,  2  Wall.  510.  "The  appointment 
of  a  receiver  in  a  suit  for  the  foreclosure  of  a  mortgage  on  a  rail- 
road is  not  a  matter  of  right,  but  rests  in  the  sound  discretion  of 
the  court,  and  is  a  power  to  be  exercised  sparingly,  and  with  great 
caution":  Per  Caldwell,  Cir.  J.,  in  Farmers'  Loan  &  Trust  Co.  v. 
Kansas  City,  W.  &  N.  W.  R.  Co.,  53  Fed.  182,  184.  "Whether  a  re- 
ceiver shall  be  appointed  is  always  a  matter  of  discretion,  to  be  exer- 
cised sparingly  and  with  great  caution  in  the  case  of  quasi  public  cor- 
porations operating  a  public  highway,  and  always  with  reference  to 
the  special  circumstances  of  each  case  as  it  arises":  Sage  v.  Railroad 
Co.,  125  U.  S.  361,  8  Sup.  Ct.  887,  31  L.  ed.  694.  See,  also,  Overton 
v.  Memphis  etc.  R.  Co.,  10  Fed.  866,  3  McCrary,  436;  Kelly  v.  Ala- 
bama etc.  R.  R.,  58  Ala.  489;  Merriam  v.  St.  Louis,  C.  G.  &  Ft.  S. 
R.  Co.,  136  Mo.  135,  36  S.  W.  630;  Stevens  v.  Davison,  18  Gratt.  819, 
98  Am.  Dec.  692. 

312  "In  actions  to  foreclose  railway  mortgages,  it  has  come  to  be 
the  fact  that  receivers  are  appointed,  especially  in  the  Federal  courts, 
almost  as  a  matter  of  course;  and  in  these  and  other  cases  courts 
have  often  shown  a  discreditable  eagerness  to  possess  themselves  of 
80  much  jurisdiction  and  power,  and  a  corresponding  disinclination 
to  relinquish  it  when  once  acquired":  5  Thomp.  Corp.,  §  6833.  Allow- 
ance should  be  made,  of  course,  for  Judge  Thompson's  well-known 
antipathy  to  the  federal  courts;  but  the  fact  remains  that  out  of 
the  vast  multitude  of  railroad  receivership  cases  that  have  engaged 
the  attention  of  these  courts  in  late  years,  in  a  very  small  number 


249  APPOINTMENT  OF  EAILROAD  EECEIVERS.  i  ISt 

While  railroad  receivers  are  usually  appointed  as 
an  incident  of  foreclosure  proceedings,  they  are  occa- 
sionally appointed  in  other  classes  of  cases;  as,  at  the 
suit  of  a  judgment  creditor^ ^^  or    of  a  shareholder;^^* 

only  does  the  court  take  the  trouble  to  justify  its  action  in  appoint- 
ing the  receiver. 

313  Sage  V.  Memphis  etc,  R.  E.  Co.,  125  U.  S.  361,  8  Sup.  Ct.  887, 
31  L.  ed.  694,  holding  that  the  suing  out  of  execution  was  not  a 
prerequisite  where  it  would  be  useless,  and  no  objection  was  made 
on  this  ground.  In  Milwaukee  &  M.  E.  E.  Co.  v.  Soutter,  2  Wall. 
510,  523,  17  L.  ed.  860,  Mr.  Justice  Miller  remarks:  "The  idea  of  ap- 
pointing or  continuing  a  receiver  for  the  purpose  of  taking  ninety- 
five  miles  of  railroad  from  its  lawful  owners,  which  is  earning  a 
gross  revenue  of  $800,000  per  annum,  to  enforce  the  payment  of  a 
judgment  of  $16,000,  the  lien  of  which  is  seriously  controverted,  is 
so  repugnant  to  all  our  ideas  of  judicial  proceedings  that  we  cannot 
argue  the  question.  If  the  creditor  has  a  valid  judgment,  the  usual 
modes  of  enforcing  that  judgment  are  open  to  him,  both  at  law  and 
in  chancery;  but  the  extraordinary  proceeding  of  taking  millions  of 
dollars'  worth  of  property,  of  such  peculiar  character  as  railroad 
property  is,  from  its  rightful  possessors,  as  one  of  the  usual  modes 
of  collecting  such  a  comparatively  small  debt,  can  find  no  countenance 
in  this  court."  For  a  special  statute  in  Kentucky  authorizing  the 
appointment  of  a  receiver  in  aid  of  a  judgment  creditor  whose  exe- 
cution has  been  returned  unsatisfied,  see  Ball  v.  Maysville  &  B.  S. 
E.  Co.,  102  Ky.  486,  80  Am.  St.  Eep.  362,  43  S.  W.  731. 

314  Stevens  v.  Davison,  18  Gratt.  819,  829,  98  Am.  Dec.  692  (re- 
ceiver appointed  in  suit  by  shareholder  to  set  aside  an  unauthorized 
lease  of  the  road,  until  it  could  be  ascertained,  by  proper  inquiry, 
who  are  the  legitimate  stockholders  of  the  company,  to  whom  the 
custody  and  management  of  the  railroad  should  be  committed) ; 
Union  Trust  Co.  v.  Illinois  Midland  E.  Co.,  117  U.  S.  434,  6  Sup.  Ct. 
809,  29  L.  ed.  963. 

In  the  following  special  cases  a  receiver  was  sought  and  refused: 
in  aid  of  an  injunction  restraining  the  consolidation  of  two  com- 
panies, when  it  was  not  shown  that  the  directors  of  the  company  in- 
tended to  transfer  its  property  in  violation  of  such  injunction:  Cleve- 
land etc.  Ey,  Co.  v.  Jewett,  37  Ohio  St.  649;  in  aid  of  an  injunction 
against  the  performance  of  an  agreement  in  restraint  of  trade:  Stock- 
ton V.  Central  E.  Co.,  50  N.  J.  Eq.  489,  25  Atl.  942;  in  aid  of  an  in- 
junction regulating  the  use  of  a  common  easement:  Delaware,  L.  & 
W.  E,  Co.  V.  Erie  E.  Co.,  21  N.  J.  Eq.  298.  As  to  receivers  in  aid  of 
judgment  creditors  of  railway  companies  in  England  under  the  Enil- 
way  Companies  Act  of  1867,  see  In  re  Birmingham  &  L.  J.  E.  Co. 
18  Ch.  D.  155. 


i  120  EQUITABLE     REMEDIES.  250 

bnt  not  on  the  application  of  the  company  itself,^^^  nor 
in  aid  of  an  unsecured  creditor  who  has  not  reduced 
Ms  claim  to  judgment.^^* 

§  129.  In  Foreclosure  of  Railroad  Mortgages;  in  General. 
Whatever  may  be  thought  of  the  practice,  the  principle 
is  well  settled  that  a  receiver  is  not  to  be  appointed  as 
a  matter  of  course  on  the  mere  ground  that  the  defend- 
ant corporation  is  in  default.^ ^^  "The  right  to  fore- 
close does  not  cai*ry  with  it  the  right  to  a  receiver. 
There  are  many  considerations  that  bear  upon  that 
question.  Every  case,  of  course,  stands  on  its  own 
merits.  It  is  difficult  to  formulate  any  rule  which, 
briefly  stated,  will  control  in  all  cases.  It  should  ap- 
pear that  there  is  some  danger  to  the  property;  that 
its  protection,  its  preservation,  the  interests  of  the  va- 
rious holders,  require  possession  by  the  court  before  a 
receiver  should  be  appointed.  It  does  not  go  as  a  mat- 
ter of  course;  and  yet  it  is  not  a  matter  that  a  court 
can  refuse  simply  because  it  is  an  annoyance.  If,  look- 
ing at  the  situation  of  the  litigating  parties,  and  of  the 
property,  with  the  prospect  of  the  future,  it  should  ap- 
pear to  a  court  that  they  would  be  benefited,  that  their 
interests  would  be  subserved  by  the  appointment  of  a 
receiver,  no  court — although  a  matter  resting,  as  it  is 

«15  See  ante,  §  118. 

H6  Guilmartin  v.  Middle  Georgia  &  A.  E.  Co.,  101  Ga.  565,  29  S. 
■.  189. 

317  Williamson  v.  New  Albany  etc.  R.  Co.,  1  Biss.  206,  Fed.  Cas. 
Vo.  17,753;  Union  Trust  Co.  v.  St.  Louis,  I.  M.  &  S.  E.  Co.,  4  Dill. 
114,  Fed.  Cas.  No.  14,402;  Farmers'  Loan  &  Trust  Co.  v.  Chicago  & 
A.  E.  Co.,  27  Fed.  146;  American  Loan  &  Trust  Co.  v.  Toledo,  C.  & 
e.  E.  Co.,  29  Fed.  416;  Mercantile  Trust  Co.  v.  Missouri,  K.  &  T.  E. 
Co.,  36  Fed.  221,  1  L.  E.  A.  397.  See,  also,  observations  in  Blair  v. 
at.  Louis,  H.  &  K.  E.  Co.,  20  Fed.  348. 

A  bondholder  cannot  have  the  appointment  of  a  receiver  as  against 
a  lessee  in  possession  under  a  lease  prior  in  time  to  the  mortgage: 
LouiaviUe  &  N.  R.  Co.  v.  Eakins,  100  K7.  745,  39  S.  W.  416. 


251  APPOINTMENT  OF  KAILEOAD  EECEIVERS.  §  129 

said,  in  its  discretion — could  refuse  to  make  the  ap- 
pointment."^^ ^ 

The  reason  why  it  has  become  the  common  practice 
to  appoint  receivers  for  the  administration  of  the  mort- 
gaged property  of  railroads  upon  default  in  payment 
of  interest  on  the  bonds  is  lucidly  explained  in  a  recent 
case,  in  part  as  follows:  "The  fact  that  so  many  rail- 
road corporations  have  issued  bonds  and  mortgaged 
their  property  in  advance  of  the  construction  of  their 
railroads  and  the  acquisition  of  the  property  mort- 
gaged, greatly  beyond  its  market  value  at  forced  sale, 
had  inclined  courts  of  equity  to  treat  holders  of  rail- 
road bonds,  or  the  trustees  in  the  mortgages,  as  the 
owners  of  the  roads,  rather  than  simply  as  lienholders, 
and  to  charge  them  as  such  owners,  after  default,  with 

the  unpaid  expenses  of  operating  the  property 

It  is  true  that  such  [forced]  sales  are  not  a  reasonable 
test  of  the  actual  value  of  such  property.  It  is,  how- 
ever, equally  true  that  the  conditions  which  generally 
affect  such  property  have  been  found  to  render  it  not 
practicable  to  make  a  sale  thereof  in  any  other  man- 
sis  Per  Brewer,  J.,  in  Mercantile  Trust  Co.  v.  Missouri,  K.  &  T. 
E,  Co.,  36  Fed.  221,  224,  1  L.  E.  A.  397.  A  receiver  was  appointed  in 
this  case  under  the  following  circumstances:  a  railroad,  mortgaged 
to  the  extent  of  $28,000  a  mile,  had  made  several  defaults  in  the 
payment  of  interest,  aggregating  over  $1,000,000;  its  business  was 
decreasing,  and  was  likely  to  decrease  further  from  competition  by 
new  lines;  it  was  in  need  of  repairs  and  improvements;  its  bondhold- 
ers were  not  in  harmony;  and  no  other  way  existed  for  applying  the 
rents  and  profits  of  the  road  to  the  payment  of  its  debts.  See,  fur- 
ther, as  to  the  discretion  of  the  chancellor  in  the  matter  of  the  ap- 
pointment, Pullan  V.  Cincinnati  etc.  E.  Co.,  4  Biss.  35,  Fed.  Cas.  No. 
11,461;  Pennsylvania  Co.  for  Insurance  v.  Jacksonville  etc.  Ey.  Co., 
55  Fed.  131,  2  U.  S.  App.  606,  5  C.  C.  A.  53;  Kelly  v.  Trustees  etc., 

58  Ala.  489;  Farmers'  Loan  &  Trust  Co.  v.  Winona  &  S.  W.  Ey.  Co., 

59  Fed.  960;  Sage  v.  Memphis  &  L.  E.  E.  Co.,  125  U.  S.  361,  8  Sup. 
Ct.  887,  31  L.  ed.  694;  Tysen  v.  Wabash  Ey.  Co.,  8  Biss.  247,  Fed. 
Cas.  No.  14,315;  Williamaon  t.  New  Albany  etc.  E.  Co.,  1  Biss.  206,, 
Fed.  Caa.  No.  17,753. 


§  129  EQUITABLE     REMEDIES.  252 

ner  to  any  greater  or  to  an  equal  advantage  to  all 
parties  concerned  therein.  The  practical  result  from 
these  prevalent  conditions  is  that,  when  a  railroad  cor- 
poration is  unable  to  pay  its  currently  accruing  inter- 
est, it  is  actually,  as  well  as  technically,  insolvent,  and 
its  property  inadequate  security  for  its  mortgage  debt. 
The  larger  part  of  the  value  of  the  property  is  de- 
pendent upon  its  continued  operation  as  a  public  car- 
rier. Its  successful  operation  and  ability  to  earn  in- 
come are  in  most  cases  largely  dependent  on  the  rail- 
road's connections,  and  its  friendly  relations  with  other 
carriers,  and  on  the  good  will  it  has  secured.  And 
while  the  appointment  of  a  receiver  is  not  a  matter  of 
strict  right,  and  such  applications  always  call  for  the 
exercise  of  judicial  discretion,  these  imminent  condi- 
tions bearing  upon  such  property,  after  default  by  the 
mortgagor  in  the  payment  of  interest  on  the  mortgage 
debt,  give  to  an  application  for  the  appointment  of  a 
receiver  great  force,  and  the  practice  to  grant  the 
prayer  therefor  in  such  cases  has  become  settled. "^^'^ 

319  Central  Trust  Co.  v.  Chattanooga,  R.  &  G.  R.  Co.,  94  Fed.  275, 
36  C.  C.  A.  241.  In  Farmers'  Loan  &  Trust  Co.  v.  Winona  &  S.  W. 
Ry.  Co.,  59  Fed.  957,  the  allegations  of  the  bill  and  answer  were  in 
conflict  as  to  the  solvency  of  the  company,  the  condition  and  care 
of  its  property,  and  the  wisdom  and  economy  of  its  methods  of  oper- 
ation, but  it  appeared  that  the  majority  of  its  stock  was  in  the  hands 
of  a  construction  company,  which  had  substantially  the  same  officers, 
and  whose  interests  were  adverse  to  those  of  the  mortgage  bondhold- 
ers. It  was  held,  by  Caldwell,  Cir.  J.,  that  these  facts  presented  a 
case  for  the  appointment  of  a  receiver  upon  default  in  payment  of  in- 
terest on  the  bonds.  In  Kennedy  v.  St.  Paul  &  Pacific  R.  Co.,  2  Dill. 
448,  Fed.  Cas.  No.  7706,  a  ground  for  the  appointment  was  found  in 
the  fact  that  the  financial  condition  of  the  company  was  such  as  to 
prevent  it  from  constructing  a  few  miles  of  road,  the  completion  of 
which  within  a  given  time  was  necessary  to  prevent  the  lapsing  of 
a  land-grant  which  formed  an  essential  part  of  the  bondholders' 
security.  See,  also,  Allen  v.  Dallas  &  W.  R.  Co.,  3  Woods,  316,  Fed. 
Cas.  No.  221.  In  Putnam  v.  Jacksonville,  L.  &  St.  L.  Ry.  Co.,  61 
Fed.  440    default  in  payment   of  taxes  to  a  large  amount  was  held 


26S  APPOINTMENT  OF  RAILROAD  RECEIVERS.  §   130 

§  130.  Same;  at  "What  Stage  Appointed. — A  receiver 
ought  not  ordinarily  to  be  appointed  unless  the  right 
of  foreclosure  is  clear  and  indisputable;  the  existence 
of  a  reasonable  dispute  as  to  whether  the  conditions  of 
the  mortgage  have  been  broken  is  sufficient  to  cause  the 
court  to  refuse  the  appointment.^^" 

After  the  decree  of  foreclosure  has  been  rendered, 
but  under  the  laws  of  the  state  no  sale  can  be  had 
until  the  expiration  of  six  months  from  the  date,  the 
bondholders  have  a  right  to  claim  that  the  net  income 
shall  be  received  by  a  disinterested  trustee.^^^ 

A  receiver  to  preserve  the  franchise  of  a  street  rail- 
road company  from  forfeiture  was  held  to  be  properly 

an  important  circumstance  pointing  to  the  propriety  of  a  receiver- 
»hip,  in  connection  with  a  large  indebtedness  for  wages  and  supplies, 
although  the  company  had  not  yet  made  default  in  the  payment  of 
interest. 

A  petition  by  a  minority  of  bondholders  of  a  street  railway  com- 
pany showing  that  the  company  had  failed  to  pay  accrued  interest; 
that  it  was  allowing  claims  against  it  to  accumulate;  that  executions 
had  been  levied  on  the  property;  that  the  company  was  without  offi- 
cers; that  the  trustees  had  filed  resignations,  and  had  refused  to 
act;  and  that  the  franchises  were  in  danger  of  being  repealed  be- 
eause  of  the  mismanagement  of  the  road — shows  sufficient  grounds 
for  the  appointment  of  a  receiver:  Ralph  v.  Shiawassee  Circuit  Judge, 
100  Mich.  164,  58  N.  W.  837. 

320  American  Loan  &  Trust  Co.  v.  Toledo,  C.  &  S.  Ry.  Co.,  29  Fed. 
416.  In  this  case  there  had  been  default  in  the  payment  of  interest 
coupons,  but  it  appeared  that  there  was  a  fair  and  reasonable  claim 
by  the  defendant  company,  growing  out  of  contemporaneous  con- 
tracts, that  the  time  of  payment  had  been  extended,  or  that  the  plain- 
tiffs were  precluded  from  relying  on  the  default.  In  Brassey  v.  New 
York  &  N.  E.  R.  Co.,  19  Fed.  663,  a  receiver  was  appointed  by  consent 
before  default,  when  it  appeared  that  the  company  was  insolvent,  was 
unable  to  pay  either  its  mortgage  debt,  its  floating  debts,  or  the 
sums  due  connecting  roads;  that  by  virtue  of  numerous  attachments 
it  was  in  danger  of  the  destruction  of  its  business;  and  that  default 
in  the  payment  of  interest  was  imminent. 

321  Benedict  v.  St.  Joseph  &  W.  R.  Co.,  19  Fed.  173.  In  this  case 
hostile  bondholders  were  in  possession  of  the  road,  which  was  there- 
fore placed  in  the  hands  of  a  receiver  until  the  sale. 


§   131  EQUITABLE     EEMEDIES.  254 

appointed  at  the  prayer  of  the  mortgagee  under  the 
following  circumstances:  the  city  had  power  to  enforce 
such  forfeiture  for  failure  to  make  certain  repairs;  the 
company  confessed  its  inability  to  make  such  repairs ; 
and  the  mortgagee,  a  party  to  the  suit  between  the  com- 
pany and  the  city,  stood  ready  to  advance  the  necessary 
funds  in  case  a  receiver  should  be  appointed  with  power 
to  borrow  money.^^^ 

§  131.  Same ;  Trustee's  Rig^ht  to  Take  Possession  on  Defanlt 
as  Affecting  the  Question  of  Appointment. — A  provision  fre- 
quently found  in  railway  deeds  of  trust  empowers  the 
trustee,  on  default  in  payment  of  principal  or  interest, 
to  take  possession  of  and  manage  the  property,  and  ap- 
ply the  net  income  to  the  payment  of  the  principal  and 
interest.  Such  provisions  have  frequently  been  passed 
upon  by  the  courts,  with  reference  to  their  effect  upon 
the  trustee's  or  bondholders'  right  to  a  receiver,  with 
considerable  lack  of  agreement  in  the  results  arrived 
at.  In  an  early  case  it  was  held  that  the  trustee  may 
waive  his  right  under  this  provision  and  file  a  bill  to 
foreclose,  but  that  in  such  a  suit  the  court,  in  the 
exercise  of  its  discretion,  would  refuse  to  appoint  a 
receiver  where  no  mismanagement  or  misapplication  of 
the  revenue  of  the  road  was  shown.^^^  In  a  series  of 
cases  in  one  of  the  circuits  the  appointment  seems  to 
have  been  looked  upon  almost  as  a  matter  of  right  on 

322  Union  St,  E.  Co,  v.  Saginaw,  115  Mich.  300,  73  N.  W.  243,  dis- 
tinguishing the  Michigan  cases  denying  the  right  to  a  receiver  in 
foreclosure.     See  (tr}tr.   !j   94. 

323  Williamson  v.  New  Albany  etc,  R,  Co.  (1857),  1  Biss.  198, 
Fed.  Cas.  No.  17,753.  No  misapplication  was  shown  where  the  reve- 
nues had  been  applied  to  the  reduction  of  a  floating  debt  incurred  for 
the  completion  and  equipment  of  the  road,  whereby  the  security  of 
the  bondholders  had  been  improved.  The  principle  of  this  case  fur- 
nished a  "perfect  analogy"  in  the  decision  in  Union  Trust  Co.  v. 
St.  L.  I.  M.  &  S.  R.  Co.,  4  DiU.  114,  Fed.  Cas.  No.  14,402,  per  Miller,  J, 


255  APPOINTMENT  OF  KAILROAD  RECEIVERS.  §  131 

the  mere  showing  of  a  default  by  the  company;  thus,  it 
was  decided  that  where  the  trustee  has  failed  to  take 
possession  after  default  and  a  request  by  the  bond- 
holders, a  receiver  may  be  appointed  on  the  ground  of 
such  neglect,  in  their  suit  to  enforce  performance  of 
the  trust  ;^2*  and  that  when  the  deed  of  trust  mort- 
gaged the  income  and  profits,  a  receiver  may  be  claimed 
by  the  trustees  on  the  mere  ground  of  a  default,  irre- 
spective of  any  showing  as  to  the  insufiiciency  of  the 
property  as  a  security,  or  that  it  is  in  jeopardy,  or  that 
the  company  is  insolvent.^^^  A  ruling  similar  to  the 
last  has  been  made  by  a  state  court,  in  a  case  where  the 
suit  was  by  the  trustee  to  obtain  possession,  not  to  fore- 
close.^-^ A  distinguished  federal  judge  has  held  that 
such  a  suit  for  specific  enforcement  of  the  mortgagee's 
right  is  the  proper  procedure  where  the  mortgage  em- 
braces real,  personal  and  mixed  property,  which  can- 
not be  transferred  as  a  whole  by  the  inflexible  form  and 
processes  of  a  court  of  law;  and  that  a  receiver  should 
be  appointed  during  the  pendency  of  the  suit,  where  the 
mortgaged  property  is  an  inadequate  security,  and  the 
company  is  insolvent  and  appropriating  its  earnings 
to  its  own  use.^2'  A  single  state  court  has  held,  on  the 
contrary,  that  the  legal  remedies  for  the  recovery  of 
possession  are  adequate  in  such  a  case,  and  that  no 

324  Wilmer  v.  Atlanta  &  R.  A.  R.  Co.,  2  "Woods,  409,  Fed.  Cas.  No. 
17,775;  "Warner  v.  Rising  Fawn  Iron  Co.,  3  "Woods,  514,  Fed.  Cas,  No. 
17,188. 

325  Allen  V.  Dallas  &  W.  R.  Co.,  3  Woods,  316,  Fed.  Cas.  No.  321. 
This  case,  however,  presented  the  additional  grounds  that  the  com- 
pany was  insolvent,  and  that  a  land  grant  was  in  danger  of  lapsing 
and  the  charter  of  being  forfeited,  owing  to  the  inability  of  the  com- 
pany to  complete  the  road. 

326  McLane  v.  Sacramento  &  Placerville  R.  Co.,  66  Cal.  6(JB,  6 
Pac.  748;  Sacramento  &  Placerville  R.  Co.  v.  Superior  Court,  55  Cai. 
453.  The  statutory  provisions  relating  to  receivers  in  foreclosure 
were  held  not  applicable. 

327  Dow  V.  Memphis  &  L.  B.  R.  Co.,  20  Fed.  260. 


§1  132,  13S  EQUITABLE  REMEDIES.  256 

ground  exists  for  the  appointment  of  a  receiver  where 
the  trustee  has  made  no  attempt  to  enforce  his  rights 
at  law.^2^ 

§  132.  (11)  Receiver  in  Bankruptcy  Proceedings. — By  the 
Bankruptcy  Act  of  1898,  the  courts  of  bankruptcy  have 
jurisdiction  (section  2,  clause  3)  to  "appoint  receivers 
or  the  marshals,  upon  application  of  parties  in  interest, 
in  case  the  courts  shall  find  it  absolutely  necessary,  for 
the  preservation  of  estates,  to  take  charge  of  the  prop- 
erty of  bankrupts  after  the  filing  of  the  petition  and 
until  it  is  dismissed,  or  the  trustee  is  qualified,"  and  to 
(clause  5)  "authorize  the  business  of  bankrupts  to  be 
conducted  for  limited  periods  by  receivers,  the  marshals, 
or  trustees,  if  necessary  in  the  best  interests  of  the 
•states."^^® 

§  133.  (12)  Alimony  and  Maintenance — Miscellaneous 
Cases. — In  a  series  of  recent  cases  in  California,  the  sub- 
ject of  receivers  in  suits  for  divorce  or  maintenance  has 
been  considered.  The  authority  for  the  appointment 
of  a  receiver  in  a  divorce  suit  is  found  in  the  Civil  Code 

«28  Rice  V.  St.  Paul  &  P.  R.  Co.,  24  Minn.  464, 

S29  See  In  re  Sievers,  91  Fed.  366;  In  re  Etheridge  Furniture  Co., 
92  Fed.  329  (assignee  may  be  appointed) ;  In  re  Fixen  &  Co.,  96  Fed. 
748;  In  re  Reliance  Storage  &  Warehouse  Co.,  100  Fed.  619;  In  t» 
Kelly  Dry  Goods  Co.,  102  Fed.  747  (as  to  appointment  by  referee); 
Ju  re  Floecken,  107  Fed.  241  (same);  Booneville  Nat.  Bank  v.  Blakey, 
107  Fed.  891,  47  C.  C.  A.  43  (powers  of  such  receiver  limited  by  terms 
•f  the  statute);  In  re  Rogers,  125  Fed.  169,  60  C.  C.  A.  567.  For  the 
procedure  in  obtaining  the  appointment,  and  the  functions  and  duties 
•f  such  receivers,  see  Loveland,  Bankruptcy,  2d  ed.,  §  77a.  As  to 
appointment  of  receivers  in  connection  with  bankruptcy  proceedings 
in  England,  see  Riches  v.  Owen,  L.  R.  3  Ch.  App.  820;  Ex  parte  Jay, 
L.  R.  9  Ch.  App.  133;  Taylor  v.  Eckersley,  L.  R.  5  Ch.  D.  740;  Ex 
parte  Rylands,  L.  R.  6  Ch.  D.  57;  Salt  v.  Cooper,  L.  R.  16  Ch.  D. 
544. 


257       APPOINTMENT   OF  RECEIVERS;  MISCELLANEOUS.   §  133 

of  that  state.2^°  It  is  held  that  the  whole  object  of  his 
appointment  is  to  provide  security  for  the  payment  of 
such  allowance  as  is  made  for  the  maintenance  of  the 
divorced  wife,  and  that  this  would  be  accomplished  by 
investing  him  with  the  title  and  control  of  some  pro- 
ductive property  of  the  husband,  out  of  the  income  of 
which  he  could  pay  such  allowance,  or  by  authorizing 
the  sale  of  property  to  create  a  fund,  the  income  of 
which  would  be  applied  to  the  same  purpose.^^^  Where 
a  husband  has  failed  to  pay  alimony  pursuant  to  orders 
of  the  court,  and  has  attempted  to  dispose  of  his  prop- 
erty to  prevent  his  wife  from  getting  any  part  of  it, 
the  lion  of  the  alimony  upon  the  husband's  estate  may 
be  enforced  by  appointing  a  receiver  to  collect  the  rents 
and  profits,  to  sell  the  property,  and  pay  the  sums  ad- 
judged to  be  due.^^2  But  the  court  has  no  jurisdiction 
to  continue  the  receiver  after  the  entry  of  a  final  judg- 
ment in  the  action  for  permanent  alimony  in  a  single 
sum  of  money;  such  judgment  must  be  enforced  not  by 
a  receiver,  but  by  a  writ  of  execution  against  the  prop- 
erty of  the  husband.^^^  It  is  also  held  that  the  right 
to  a  receiver  in  an  equitable  action  by  the  wife  for 
maintenance  without  divorce  is  not  dependent   upon 

330  Cal.  Civ.  Code,  §  140.  "The  court  may  require  the  husband 
to  give  reasonable  security  for  providing  maintenance  or  making 
any  payments  required  under  the  provisions  of  this  chapter  [con- 
cerning Divorce],  and  may  enforce  the  same  by  the  appointment  of 
a  receiver,  or  by  any  other  remedy  applicable  to  the  case.'' 

331  Petaluma  Sav.  Bank  v.  Superior  Court,  111  Cal.  488,  495,  44 
Pac.   177. 

332  Huellmantel  v.  Huellmantel,  124  Cal.  583,  589,  57  Pac.  582. 

333  White  V.  White,  130  Cal.  597,  80  Am.  St.  Eep.  150,  62  Pac.  1062. 
The  provision  of  the  Code  of  Civil  Procedure,  §  564,  subd.  3,  for  a 
"receiver  after  judgment,  to  carry  the  judgment  into  effect,"  ap- 
plies only  to  cases  where  the  judgment  affects  specific  property,  and 
not  to  a  simple  money  judgment,  where  the  writ  of  execution  furi- 
nishes  an  amply  sufficient  remedy:  Id. 

Equitable  Remedies,  Vol.  1—17 


§  133  EQUITABLE  EEMEDIES.  258 

this  section,  but  is  within  the  general  provision  of  the 
code  for  such  an  officer  in  all  cases  "where  receivers 
have  been  heretofore  appointed  by  the  usages  of  courts 
of  equity" ;  and  that  such  a  receiver  should  be  appointed, 
when  occasion  arises,  for  reasons  like  those  on  which 
a  creditor,  seeking  to  avoid  fraudulent  conveyances  of 
a  debtor,  is  permitted  to  employ  the  same  instrumen- 
tality.334 

A  statute  in  Indiana  authorizes  a  receiver  in  an  ac- 
tion of  replevin,  when  the  property  claimed  has  a  pecu- 
liar value  that  cannot  be  compensated  by  damages.^^^ 

A  receiver  has  been  allowed,  under  peculiar  circum- 
stances, for  the  protection  of  a  trade  secret,  where  the 
usual  remedy  by  injunction  was  inadequate.  When 
parties  become  possessed  in  a  wrongful  and  fraudulent 
manner  of  a  knowledge  of  a  secret  code  or  system  of 
letters,  figures,  and  characters,  and  the  key  thereto, 
showing  the  cost  and  selling  price  of  wares  and  mer- 
chandise, for  use  between  the  plaintiff  and  its  traveling 
salesmen,  and  have  copied  the  same  into  a  catalogue 
of  their  own,  a  court  of  equity  should  take  such  marked 
catalogue  into  its  possession,  through  a  receiver,  and 
retain  it  pending  the  action,  where,  in  furtherance  of 
justice  and  to  prevent  a  fraudulent  use  of  such  code 
or  system,  such  intervention  becomes  necessary.^ ^^ 

334  Murray  it.  Murray,  115  Cal.  266,  56  Am.  St.  Eep,  97,  47  Pac. 
37,  37  L.  K.  A.  626;  as  where  the  husband  has  endeavored  and  is  en- 
deavoring to  sell  or  encumber  his  property  in  the  state,  and  is  a 
resident  of  another  state,  and  cannot  give  personal  attention  to  his 
properties  in  the  state:  Anderson  v.  Anderson,  124  Cal.  48,  56,  71  Am. 
St.  Rep.  17,  56  Pac.  630,  57  Pac.  81. 

335  Indiana  Eev.  Stats.  (1881),  §  1270;  Hellebush  v.  Blake,  119 
Ind.   349,   21   N.   E.   976. 

336  Simmons  Hardware  Co,  v.  Waibel,  1  S.  Dak.  488,  36  Am.  St. 
Rep.  755,  47  N.  W.  814,  11  L.  R.  A,  267.  See,  also,  as  to  protection 
of  trade  secret  by  appointment  of  receiver,  Tuttle  v.  Blow,  176  Mo. 
158,  98  Am.  St.  Rep.  488,  75  S.  W.  617. 


259  EECEIVERS  APPOINTED  APTEE  JUDGMENT.         §   134 

§  134.  Fourth  Class.— "This  class  contains  those  cases 
in  which  a  receiver  is  appointed  after  judgment  for  the 
purpose  of  carrying  the  decree  into  effect.  In  some  in- 
stances the  receiver  appointed  on  motion  pending  the 
action  is  continued  in  his  office  after  the  decree;  in 
others,  he  is  appointed  after  the  decree,  when  no  ap- 
pointment would  be  made  before  the  final  hearing.  In 
all  instances  the  object  of  a  receiver  is  to  carry  into 
effect  a  special  decree,  which  could  not  otherwise  be 
efficiently  executed  by  ordinary  process.  Among  the 
most  important  cases  in  which  a  receiver  may  thus  be 
appointed  are  creditors'  suits  and  suits  to  enforce  other 
equitable  liens,  suits  to  enforce  the  contracts  of  mar- 
ried women  against  their  separate  estates,  and  suits  or 
proceedings  generally  statutory  for  the  winding  up  of 
corporations."^^' 

337  4  Pom.  Eq.  Jur.,  §  1335.  As  to  receivers  in  creditor's  suits,  se« 
ayite,  §§  106-109;  receivers  in  proceedings  for  the  winding  up  of  cor- 
porations, ante,  §  127,  note;  in  mortgage  foreclosure,  after  the  de- 
cree, ante,  §  98;  Connelly  v.  Dickson,  76  Ind.  440;  Haas  v.  Chicago 
Bldg.  Soc,  89  111.  498;  to  carry  into  effect  a  decree  of  alimony,  ante, 
§  133.  The  classification  of  the  preceding  paragraphs  has  been  based 
on  the  subject  of  the  suit,  regardless  of  the  stage  in  the  proceedings 
at  which  the  appointment  of  a  receiver  was  requested.  A  provision 
of  most  of  the  codes  expressly  authorizes  the  appointment  of  a 
receiver  for  the  purpose  of  carrying  into  effect  a  judgment  or  decree: 
See  ante,  §  73.  See,  also,  Covington  Drawbridge  Co.  v.  Shepherd,  21 
How.  (62  U.  S.)  112,  16  L.  ed.  38  (where  rents  and  profits  for  a 
given  period  sold  under  execution,  receiver  appointed  to  collect 
tliem);  Fox  v.  Hale  &  Norcross  S.  M.  Co.,  108  Cal.  475,  41  Pac.  328; 
Stockton  V.  Central  E.  Co.,  50  N.  J.  Eq.  489,  25  Atl.  942. 

A  receiver  is  not  infrequently  appointed  after  decree  to  preserve 
the  property  during  the  pendency  of  an  appeal:  See  Kreling  v.  Kreling, 
118  Cal.  421,  50  Pac.  549  (pending  decision  of  motion  for  a  new 
trial,  to  collect  rents  and  profits  of  land  directed  by  the  judgment  to 
be  sold);  Corbin  v.  Thompson,  141  Ind.  128,  40  N.  E.  533  (not  ap- 
pointed, when  question  is  one  of  disputed  title) ;  Chicago  &  L.  E. 
E.  Co.  V,  St.  Clair,  144  Ind.  371,  42  N.  E.  225;  Mitchell  v.  Eoland, 
95  Iowa,  314,  63  N.  W.  606;  Eastman  v.  Cain,  45  Neb.  48,  63  N.  W. 
123;   Moran  v.  Johnston,  26  Gratt.  108    (to  collect   rents  and  profits 


f  135  EQUITABLE  REMEDIES.  260 

§  135.  A  Receiver  is  not  Appointed  Without  Notice  to  the 
Defendant. — The  appointment  of  a  receiver,  to  take  prop- 
erty from  one  who  is,  prima  faciei  entitled  to  its  pos- 
session, before  the  ultimate  rights  of  the  parties  can  be 
satisfactorily  determined,  is  such  a  harsh  and  extraor- 
dinary proceeding  that  the  courts  will  seldom  allow  it 
to  be  done  without  notice  having  been  given  to  the  ad- 
verse party.  The  leading  case  on  the  subject  says : 
"By  the  settled  practice  of  the  court,  in  ordinary  suits, 
a  receiver  cannot  be  appointed  ex  parte,  before  the  de- 
fendant has  had  an  opportunity  to  be  heard  in  relation 
to  his  rights,  except  in  those  cases  where  he  is  out  of 
the  jurisdiction  of  the  court  or  cannot  be  found,  or 
where,  for  some  other  reason,  it  becomes  absolutely 
necessary  for  the  court  to  interfere,  before  there  is  time 
to  give  notice  to  the  opposite  party,  to  prevent  the  de- 
struction or  loss  of  the  property."^^^  This  statement 
has  been  quoted  approvingly  and  adopted  by  the  courts 
of  nearly  every  jurisdiction  where  the  opportunity  has 
arisen.^^^ 

of  land   directed  to  be  sold  for  benefit  of  creditors) ;   Beard  v.  Ar- 
buckle,   19  W.  Va.   145    (same). 

338  Verplank  v.  Mercantile  Ins.  Co.  of  N.  Y.,  2  Paige,  438,  citing 
People  V.  Norton,  1  Paige,  17.  To  same  effect,  see  Sanford  v,  Sin- 
clair, 8  Paige,  372;  Simmons  v.  Wood,  45  How.  Pr.  262;  Strong  v. 
Epstein,  14  Abb.  N.  C.  322;  Whitney  v.  N.  Y.  &  A.  E.  Co.,  66  How. 
Pr.  436;  Whitney  v.  Welch,  2  Abb.  N.  C.  442;  Ramsey  v.  Erie  Ry. 
Co.,  7  Abb.  Pr.,  N.  S.,  156;  Ettlinger  v.  Persian  R.  &  C.  Co.,  66  Hun, 
94,  20  N.  Y.  Supp.  772;  see  as  to  the  effect  of  a  statute,  Grace  v. 
Curtiss,  3  Misc.  Rep.  558,  28  N.  Y,  Supp.  321;  Henry  v.  Furbish,  30 
Misc.  Rep.  822,  62  N.  Y.   Supp.  247. 

339  The  following  cases  uphold,  or  recognize,  the  principles  stated, 
many  of  them  in  the  words  of  the  quoted  case: 

England.— In  re  Potts,  [1893]  1  Q.  B.  648  (holding  a  receiver 
should  not  be  appointed  ex  parte). 

United  States.— Barley  v.  Gittings,  15  App.  D.  C.  427;  North  Am. 
L.  &  T.  Co.  V.  Watkins,  109  Fed.  101,  48  C.  C.  A.  254  ("and  to  de- 
prive him  [the  defendant]  of  the  possession  of  hia  property,  witTiout 
notice,  on  the  motion  of  hia  adversary,  is  a  jurisdiction  and  a  power 


261  APPOINTMENT  OF  EECEIVKRS;  NOTICE.  §  135 

that  should  be  rarely  used,  and  never  except  in  a  clear  case  of  im- 
perious necessity,  when  the  right  of  the  complainant,  on  the  showing 
made  by  him,  is  undoubted,  and  when  such  relief  and  protection  can 
be  given  in  no  other  way");  Joseph  Dry  Goods  Co.  v.  Hecht,  57 
C.  C.  A.  64,  120  Fed.  760. 

Alabama. — Crowder  v.  Moone,  52  Ala.  220;  Ashurst  v.  Lehman,  86 
Ala.  370,  5  South.  731;  Thompson  v.  Tower  Mfg.  Co.,  87  Ala.  733,  6 
South.  928  (citing  early  cases);  Moritz  v.  Miller,  87  Ala.  331,  6 
South.  269;  Sims  v.  Adams,  78  Ala.  395;  Peter  v.  Kahn  (Ala.),  9 
South.  729;  Dallins  v.  Lindsey,  89  Ala.  217,  7  South.  234;  Irwin  v. 
Everson,  95  Ala.  64,  10  South.  320;  Bank  of  Florence  v.  U.  S.  Savings 
&  Loan  Co.,  104  Ala.  297,  16  South.  110;  Capital  City  Waterworks 
Co.  V.  Weatherly,  108  Ala.  412,  18  South.  841;  see  Maxwell  v.  Peters 
Shoe  Co.,  109  Ala.  371,  19  South.  412;  Smith-Dimmick  L.  Co.  v.  Teague, 
119  Ala.  385,  24  South.  4;  Gilreath  v.  Trent  Co.,  121  Ala.  204,  25 
South.  581;  Meyer  v.  Thomas  (Ala.),  30  South.  89. 

California.— Fisher  v.  Superior  Court,  110  Cal.  129,  42  Pac.  561  (it 
would  be  a  "gross  abuse  of  discretion"). 

Colorado. — Belknap  Sav.  Bank  v.  Lamar  Land  etc.  Co.,  28  Colo, 
326,  64  Pac.  212. 

Florida.— State  v.  Jacksonville  P.  &  M.  E.  Co.,  15  Fla.  201;  Fricker 
V.  Peters  etc.  Co.,  21  Fla.  254,  approved  in  Moyers  v.  Coiner,  22 
Fla.  422;  see  Jacksonville  Ferry  v.  Stockton,  40  Fla.  141,  23  South. 
557;  Stockton  v.  Harmon,  32  Fla.  312,  13  South.  833. 

Georgia. — Eogers  v.  Dougherty,  20  Ga.  271. 

Idaho.— Cummings  v.  Steele,  6  Idaho,  666,  59  Pac.  15. 

Illinois.— Gilbert  v.  Block,  51  111.  App.  516;  Nusbaum  ▼.  Locke,  53 
111.  App.  242;  Craver  &  S.  Mfg.  Co.  v.  Whitman  etc.  Mfg.  Co.,  62 
111.  App.  313;  English  v.  People,  90  111.  App.  54. 

Indiana.— Wabash  E.  Co.  v.  Dykeman,  133  Ind.  56,  32  N.  E.  823; 
Chicago  &  S.  E.  E.  Co.  v.  Cason,  133  Ind.  49,  32  N.  E.  827  (citing 
many  early  cases);  Sullivan  E.  L.  &  P.  Co.  v.  Blue,  142  Ind.  407, 
41  N.  E.  805;  Winchester  E.  L.  Co.  v.  Gordan,  143  Ind.  681,  42  N. 
E.  914. 

Iowa. — French  v.  Gifford,  30  Iowa,  148;  approved  in  Bisson  v. 
Curry,  35  Iowa,  72;  Howe  v.  Jones,  57  Iowa,  130,  8  N.  W.  451,  10 
N.  W.  299;  see  Marsh  v.  Bird,  59  Iowa,  207,  13  N.  W.  298. 

Kansas. — Elwood  v.  First  Nat.  Bank,  41  Kan.  475,  21  Pac.  673; 
Guy  V.  Doak,  47  Kan.  236,  366,  27  Pac.  968. 

Louisiana.— State  ex  rel.  Brittin  v.  New  Orleans,  43  La.  Ann.  829, 
9  South.  643,  approved  in  Mestier  v.  Chevallier  Pav.  Co.,  51  La.  Ann. 
142,  24  South.  799  (citing  early  cases) ;  Martin  v.  Blanchin,  16  La. 
Ann.  237;  Ober  v.  Excelsior  Planting  Co.,  44  La.  Ann.  570,  10  South. 
792  (as  to  construction  of  a  statute  in  regard  to  notice).  See,  also.  In 
re  Moss  Cigar  Co.,  50  La.  Ann.  789,  23  South.  544, 


§  133  EQUITABLE  KEMEDIES.  262 

Maryland. — Thompson  v.  Diffendcrfer,  1  Md.  Ch.  489;  Blondheim 
V.  Moore,  11  Md.  365  (stating,  "unless  the  necessity  be  of  the  most 
stringent  character,  the  court  will  not  appoint  a  receiver  until  the 
defendant  is  first  heard  in  response  to  the  application");  approved 
in  Triebert  v.  Burgess,  11  Md.  4.52;  see  Voshell  v.  Heaton,  26  Md.  83; 
Anderson  v.  Cecil,  86  Md.  490,  38  Atl.  1074. 

Michigan,— People  ex  rel.  Port  Huron  &  G.  E.  Co.  v.  St.  Clair,  31 
Mich.  456;  Cook  v.  Detroit  etc.  R.  Co.,  45  Mich.  453,  8  N.  W.  74. 

lilinnesota.— Haugan  v.  Netland,  51  Minn.  552,  53  N.  W.  873. 

Mississippi.— Mays  v.  Eose,  Freem.  Ch.  703;  Whitehead  v.  Wooten, 
43  Miss.  523  ("there  must  be  strong  and  special  reasons  for  the 
ippointment  before  answer");  Hardy  v.  McClellan,  53  Miss.  507; 
Buckley  v.  Baldwin,  69  Miss.  804,  13  South.  851;  Meridian  N.  &  P. 
Co.  V.  D.  &  W.  P.  Co.,  70  Miss.  695,  12  South.  702;  Barber  v.  Manier, 
71  Miss.  725,  15  South.  890;  Whitney  v.  Hanover  Nat.  Bank,  71  Miss. 
1009,  15  South.  33,  23  L.  B.  A.  531;  Pearson  v.  Kendrick,  74  Miss. 
235,  21  South.  37. 

Missouri.- St.  Louis  &  S.  E.  Co.  v.  Wear,  135  Mo.  230,  36  S.  W.  357, 
658;  Merriam  v.  St.  L.  C.  G.  &  Ft.  S.  E.  Co.,  136  Mo.  145,  36  S.  W. 
«30;  Tuttle  v.  Blow,  176  Mo.  158,  98  Am.  St.  Eep.  488,  75  S.  W.  617. 

Montana.— Thornton-Thomas  M.  Co.  v.  Second  J.  D.  Ct.,  20  Mont. 
284,  50  Pac.  852;  State  v.  District  Court,  22  Mont.  241,  56  Pac.  281. 
It  should  not  be  made  upon  affidavit  based  upon  information  and 
belief:  Benepe-Owenhouse  Co.  v.  Scheidegger  (Mont,),  80  Pac.  1024. 

Nebraska.— By  express  terms  of  the  statute  (Code,  §§  267,  274), 
the  appointment  is  void,  and  subject  to  collateral  attack,  if  the  no- 
tice therein  prescribed  has  not  been  given:  Johnson  v.  Powers,  21 
Neb.  292,  32  N.  W.  62;  see  Farmers  &  Merchants'  Bank  v.  German 
Nat.  Bank,  59  Neb,  229,  80  N.  W.  820. 

Nevada, — Maynard  v.  Eailey,  2  Nev.  313. 

New  York.— See  cases  supra,  note  338. 

North  Carolina.— Corbin  v.  Berry,  83  N.  C.  27. 

North  Dakota.— Grandin  v.  Le  Bar,  2  N,  D.  206,  50  N.  W.  151. 

Ohio. — Schone  v.  Consolidated  Bldg.  &  Sav,  Co.,  4  Ohio  N.  P.  216; 
Cleveland  C.  C.  &  T.  E.  Co.  v.  Jewett,  37  Ohio  St.  649  (citing  early 
•ases).     See,  also,  Devell  v.  Hinds,  8  Ohio  Dec.  177. 

South  CaroUna.— Dilling  B.  &  Co.  v.  Foster,  21  S,  C.  334;  Allen  v. 
Cooley,  53  S.  C.  634,  31  S.  E.  634. 

Texas.— Webb  v.  Allen,  15  Tex.  Civ.  App.  605,  40  S.  W.  342. 

Virginia.— Fredenheim  v.  Eohr,  87  Va.  764,  13  S,  E.  193,  266  (cit- 
ing cases);  Va,  Tenn,  &  C.  S.  &  I.  Co.  v.  Wilder,  88  Va.  942,  14  S.  E. 
S06  (stating  that  appointment  without  notice  would  be  "utterly  at 
war   with   a   sound,  judicial,   discretion").    Underwood   v.   McVeigh, 


263  APPOINTMENT  OF  RECEIVERS;  NOTICE,  §  136 

§  136,  Notice  is  Necessary  Wliere  Appointment  Sought  in 
Pending  Suits — The  rule  as  to  appointment  without  no- 
tice extends  to  a  motion  for  the  appointment  of  a  re- 
ceiver in  a  pending  suit  where  the  defendant  has  ap- 
peared, or  for  the  extension  of  a  receivership  ;^^*^  the 

23  Gratt.  418,  has  the  following  to  say  of  ex  parte  appointments: 
"The  authorities  on  this  point  are  overwhelming,  and  the  decisions 
of  all  the  tribunals  of  every  country  where  an  enlightened  jurispru- 
dence prevails,  are  all  one  way.  It  lies  at  the  very  foundation  of 
justice,  that  every  person  who  is  to  be  affected  by  an  adjudication 
phould  have  the  opportunity  of  being  heard  in  defense,  both  in  re- 
pelling the  allegations  of  fact,  and  upon  matters  of  law,  and  no 
sentence  of  any  court,  is  entitled  to  the  least  respect  in  any  other 
court,  or  elsewhere,  when  it  has  been  pronounced  ex  parte  and  with- 
out opportunity  of  defense."  And  again,  "A  tribunal  which  de- 
cides without  hearing  the  defendant,  or  giving  him  an  opportunity 
to  be  heard,  cannot  claim  for  its  decrees  the  weight  of  a  judicial 
sentence":  Bristow  v.  Home  Bldg.  Co,,  91  Va.  18,  20  S.  E.  946, 
947. 

Washington. — Roberts  v.  Washington  Nat.  Bank,  9  Wash.  12,  37 
Pac.  26.  See  Cole  v.  Price,  22  Wash.  18,  60  Pac.  153;  Larsen  v.  Win- 
der, 14  Wash.  109,  53  Am.  St.  Rep.  864,  44  Pac.  123.  It  has  been 
held  that  an  ex  parte  appointment  has  no  force  beyond  the  hearing: 
State  V.  Superior  Court,  34  Wash.  123,  74  Pac.  1070. 

West  Virginia.— Ruffner  v.  Mairs,  33  W.  Va.  655,  11  S.  E,  5,  Com- 
pare Batson  v.  Findley,  52  W.  Va.  343,  43  S.  E.  142. 

Wisconsin.— Davelaar  v.  Blue  Mound  Inv.  Co.,  110  Wis.  470,  86  N. 
W.    185. 

Wyoming.  — See  for  notice  dispensed  with,  O'Donnel  v.  First  Nat. 
Bank,   9  Wyo.  408,   64   Pac.   337. 

In  addition  to  these  cases,  the  principle  is  upheld  in  many  of  the 
cases  cited  in  the  following  paragraphs,  where  it  is  applied  to  par- 
ticular classes  of  cases. 

340  Cummings  v.  Steele,  6  Idaho,  666,  59  Pac.  15  (holding  that  such 
appointment  is  not  voidable,  but  void).  See  Johnson  v.  Powers,  21 
Neb.  292,  32  N.  W.  62;  State  ex  rel.  Brittin  v.  City  of  New  Orleans, 
43  La.  Ann.  829,  9  South.  643  ("she  is  entitled  to  notice  of  all 
proceedings  taken  in  that  suit  affecting  her  interest.  The  receiver- 
ship was  originally  established,  as  appears  on  the  order,  only  on  her 
consent  and  joinder  in  the  application  therefor.  It  cannot  be  ex- 
tended and  enlarged  without  notice  to  her.  The  exception  that  the 
city  was  bound  to  proceed  by  petition  has  no  merit").  Approved 
in  Mestier  v.  A,  Chevallier  Pavement  Co.,  51  La.  Ann.  142,  24  South. 
799. 


S  137  EQUITABLE  REMEDIES.  264 

ground  being  that  the  defendant's  right  to  show  why 
his  property  should  not  be  taken  from  his  possession 
should  not  be  defeated  merely  because  he  is  already  a 
party  to  a  suit  in  regard  to  it.^^^  But  in  such  cases 
the  notice  need  not  be  as  direct  and  explicit  as  in  those 
instances  where  the  defendant  has  had  no  means  of 
knowing  that  his  right  to  the  possession  of  his  prop- 
erty is  contested.^^^ 

§  137.  To  Whom  Notice  Must  be  Given;  Waiver;  Review 
of  Ex  Parte  Appointment — Not  only  must  notice  be  given 
to  the  defendants  generally,  but  the  particular  person 
to  be  dispossessed  must  be  notified.^'*^  As  the  notice 
is  given  for  the  benefit  of  the  defendant,  who  has  pos- 
session of  the  property,  the  lack  of  notice,  or  the  ex- 
piration of  the  required  time  after  notice  and  before 

In  West  Virginia  the  rules  have  been  laid  down  as  follows:  "In 
every  instance,  before  process  served — and  the  application  is  thus 
(x  parte — such  notice  must  be  given,  except  in  cases  of  emergency, 
where  it  is  impracticable,  else  the  appointment  will  be  reversible. 
And  even  after  process  served,  during  the  pendency  of  the  suit, 
if  such  application  is  made  in  vacation,  there  must  likewise  be  such 
notice;  but  there  need  be  no  notice  when  made  in  term  time  in  a  de- 
cree on  the  merits.  Where  the  bill  prays  for  an  appointment  of  a 
receiver,  it  may  be  done  any  time  after  process  is  served,  without 
further  notice":  Batson  v.  Findley,  52  W.  Va.  343,  43  S.  E.  142. 

341  And  where  the  code  provided  that  a  receiver  could  be  ap- 
pointed, without  further  notice,  in  a  pending  action,  it  was  so  con- 
strued as  not  to  include  an  action  pending  before  a  referee,  and 
notice  was  required:   Strong  v,  Epstein,  14  Abb.  N.   C.  322. 

342  In  Clark  v.  Clark,  11  Abb.  N.  C.  333,  the  notice  was,  "if  the 
present  receiver  is  discharged,"  motion  will  be  made  for  the  ap- 
pointment of  another  one;  this  was  held  sufficient  notice.  So,  where 
the  defendant  had  had  a  hearing  that  served  the  purpose  of  a  formal 
notice:  Hancock  v.  American  Bonding  &  Trust  Co.,  86  111.  App.  630, 
citing   cases. 

343  Gilbert  v.  Block,  51  111.  App.  516.  It  has  been  held  that  a 
defendant  who  has  been  notified  cannot  object  that  the  other  defend- 
ants have  not  had  notice:  Kapp  v.  Kiehling,  122  Ind.  255,  23  N.  E, 
68.  As  to  what  constitutes  suflficient  service,  or  notice,  see  Allen 
v.  Cooley,  53  S.  C.  414,  31  S.  E.  634;  Schilcer  v.  Brock,  124  Ala.  626, 
27   South.   473. 


265  APPOINTMENT  OF  RECEIVERS;  NOTICE.  {  138 

hearing,  may  be  waived  by  the  party  affected,  and  it 
will  be  considered  as  waived  if  there  is  an  appearance, 
without  resisting  the  appointment  for  lack  of  notice.'** 
It  has  been  held  that  the  want  of  notice  of  the  ap- 
pointment is  reviewable  upon  appeal  only  from  the 
order  granting  the  receiver.^^'^ 

§  138.     Cases    Wherein    Notice    is    not    Necessary The 

early  and  leading  cases  on  the  subject  of  notice  recog- 
nized exceptions  to  the  general  rule,  that  a  receiver 
cannot  be  appointed  before  the  defendant  has  had  an 
opportunity  to  be  heard  in  relation  to  his  rights  ;^*^  as, 
where  he  is  out  of  the  jurisdiction  of  the  court  or  can- 
not be  found;  or  where  there  is  imminent  danger^*'^ 
of  loss,  to  some  of  the  parties,  if  the  court  does  not  as- 
sume immediate  control  of  the  property.  Thus,  in  case 
of  a  mortgage,  where  the  mortgagor  was  insolvent,  and 
refused  to  give  up  the  possession,  claiming  the  exist- 

344  Farmers'  and  Merchants'  Bank  v.  German  Nat.  Bank,  59  Neb. 
229,  80  N.  W.  820. 

345  Thus  the  lack  of  notice  was  not  inquired  into  on  appeal,  though 
the  cause  was  remanded  for  further  consideration,  on  other  grounds:' 
Voshell  V.  Heaton,  26  Md.  83.  Where  the  record  is  silent  on  the 
■subject,  the  co\irt  will  presume  that  proper  proceedings  were  had: 
Elwood  V.  First  Nat.  Bank,  41  Kan,  App.  673,  21  Pac.  673;  Miller  v. 
Shriner,  86  Ind.  493.  It  was  held  in  Cummings  v.  Steele,  6  Idaho, 
•666,  59  Pac.  15,  that  a  writ  of  certiorari  would  lie  to  annul  such 
appointment:  See  O'Donnell  v.  First  Nat.  Bank,  9  Wyo.  408,  64  Pac. 
337;  In  re  Moss  Cigar  Co.,  50  La.  Ann.  789,  23  South.  544;  State  v. 
Union  Nat.  Bank,  145  Ind.  537,  57  Am.  St.  Rep.  209,  44  N.  E.  585. 

346  People  V.  Norton,  1  Paige,  17;  Verplank  v.  Mercantile  Ins. 
Co.,  2  Paige,  438;  and  see  cases  cited  in  preceding  paragraph,  ap- 
proving the  principle  of  the  text. 

347  Ashurst  V.  Lehman,  86  Ala.  370,  5  South.  731;  Moritz  v.  Miller, 
87  Ala.  331,  6  South.  269;  Thompson  v.  Tower  Mfg.  Co.,  87  Ala.  733, 
6  South.  928  ("it  should  be  a  strong  case  of  emergency,  and  peril, 
well  fortified  by  affidavit").  See,  also,  Whitehead  v.  Wootens,  43 
Miss.  523;  Bristow  v.  Home  Bldg.  Co.,  91  Va.  18,  20  S.  E.  946  (case 
•of  mortgage,  holding  it  must  be  an  "obvious  necessity"). 


8'  138  EQUITABLE  REMEDIES.  265 

ence  of  a  prior  lien,  and  the  crops  were  liable  to  be 
wasted,  it  was  held 'that  the  appointment  of  a  receiver 
without  notice  was  proper,^*^  The  requisite  in  any 
case  seems  to  be  tliat  there  must  be  an  urgent  necessity 
for  the  assumption  of  control  of  the  property  by  the 
court,  and  this  may  arise  from  various  circumstances.^*® 
Where  the  defendant  has  acted,  or  is  acting,  fraud- 
ulently,^^"' or  is  about  to  remove  his  property  from  the 
jurisdiction,  or  is  himself  a  non-resident,^^^  the  courts 

348  Ashurst  V.  Lehman,  86  Ala.  370,  5  South  731  ("considering 
the  nature  and  character  of  the  subject-matter  of  the  controversy,. 
the  facility  with  which  the  crops  may  be  disposed  of,  their  liability 
to  waste  or  destruction,  the  necessity  of  their  preservation  and  ap- 
plication to  the  mortgage  debt,  the  insolvency  of  the  defendant,  and 
his  application  of  a  part  of  the  crop  in  disregard  of  the  rights  of 
the  plaintiff,  we  are  of  the  opinion  that  the  bill  makes  a  good  prima 
facie  case  for  the  appointment  of  a  receiver,  and  sJiotcs  a  good  reason 
for  failure  to  give  notice  of  the  application").  In  the  following  cases, 
receivers  were  appointed  on  ex  parte  application  in  suits  to  fore- 
elose  chattel  mortgages:  H.  B.  Claflin  Co.  v.  Furtick,  119  Fed.  429; 
Haggard  v.  Sanglin,  31  Wash.  165,  71  Pac.  711. 

349  State  V.  Jacksonville,  P.  &  M.  R.  Co.,  15  Fla.  201,  approved  in 
Stockton  V.  Harman,  32  Fla.  312,  13  South.  833;  Frickers  v.  Peters- 
&  Calham  Co.,  21  Fla.  254,  approved  in  Moyes  v.  Coiner,  22  Fla. 
422;  Jacksonville  Ferry  Co.  v.  Stockton,  40  Fla.  141,  23  South.  557, 
See,  also,  Elwood  v.  First  Nat.  Bank,  41  Kan.  495,  21  Pac.  673 
(insolvent  bank);  Barley  v.  Gittings,  15  App.  D.  C.  427  (holding  the 
existence  of  the  emergency  not  subject  to  collateral  attack).  For 
further  illustration  see  the  cases  cited  in  the  following  paragraphs, 
where  they  are  collected,  in  groups,  with  reference  to  the  class  ta 
which  they  relate.  While  the  rule  of  law  on  the  subject  is  not  seri- 
ously questioned,  in  its  application  to  the  special  circumstances  of 
the  individual  cases,  different  courts  have  arrived  at  opposite  con- 
elusions  on  what  are,  apparently,  identical  states  of  fact. 

350  Maxwell  v.  Peters  Shoe  Co.,  109  Ala.  371,  19  South.  412  (case 
•f  fraudulent  assignment) ;  Heard  v.  Murray,  93  Ala.  127,  9  South. 
514  (conveyance  in  fraud  of  creditors);  Sanborn  v.  Sinclair,  8  Paige, 
373  (where  the  defendant  fraudulently  withdrew  himself  from  the 
jurisdiction) ;  May  v.  Rose,  Freem.  Ch.  703.  See,  also,  Hutchinson 
T.  First  Nat.  Bank,  133  Ind.  271,  36  Am.  St.  Rep.  537,  30  N.  E.  952. 

8.51  State  V.  District  Court,  22  Mont.  241,  56  Pac.  281  (imminent 
danger  that  property  would  be  removed  beyond  the  jurisdiction);. 
Hendrix  v.  American  Land  &  Mortgage  Co.,  95  Ala.  313,  11  South. 


267  APPOINTMENT  OF  EECEIVERS;  NOTICE.  §  139 

have  considered  the  emergency  sufficient  to  warrant  the 
extraordinary  relief  of  appointing  a  receiver  on  an  ex 
parte  application.  In  such  cases  the  allegations  of  the 
bill  must  be  such  that  the  court  can  satisfy  itself  that 
a  case  of  emergency  really  exists,  and  is  not  founded 
on  the  mere  apprehension,  or  information  and  belief  of 
the  plaintiff.352 

§  139.  Same;  Tendency  to  Restriction  of  Ex  Parte  Ap- 
pointments.— The  cases  of  emergency  in  which  the  courts 
have  allowed  a  receiver  have,  in  many  instances,  become 
quite  well  settled,  and  the  frequency  of  ex  parte  ap- 
pointments, without  a  due  consideration  of  the  rights 
of  all  parties  interested,  has  led  to  much  well-deserved 
criticism  by  some  of  the  courts.  Thus,  it  is  said :  "The 
right  to  appoint  receivers  vested  in  the  court  should 
only  be  exercised  when  it  is  clearly  shown  to  be  neces- 
sary to  prevent  the  defeat  of  justice.  There  has  been 
a  tendency  in  recent  years  among  the  courts  to  appoint 
receivers  almost  as  a  matter  of  course,  if  the  case  as 
made  by  the  plaintiff's  complaint    seems  to  warrant 

such  action In  our  opinion,  it  is  the  duty  of 

the  courts  rather  to  restrict  than  to  extend  this  grow- 

213  (mortgage);  Hooper  v.  Davies,  70  111.  App.  682  (defendant  not 
in  the  jurisdiction);  People  v.  Norton,  1  Paige,  17;  Alford  v.  Ber- 
kele,  29  Hun,  633  (notice  to  a  non-resident  partner  not  necessary) ; 
Grace  v.  Curtiss,  3  Misc.  Eep.  558,  23  N.  Y.  Supp.  321  (debtor  not  to 
be  found  within  the  state) ;  Henry  v.  Furbish,  30  Misc.  Eep.  822^ 
62  N.  Y.  Supp.  247  (but  allegation  of  search  is  not  equal  to  "not 
to  be  found");  Morgan  v.  Van  Kohnstamm,  60  How.  Pr.  161  9 
Daly,  335;  O'Connor  v.  Mechanics'  Bank,  54  Hun,  272,  7  N.  Y.  Supp. 
380.  But  see  Whitney  v.  Welch,  2  Abb.  N.  C.  442,  holding  that 
though  non-resident,  the  defendants  were  entitled  to  "some"  no- 
tice; and  Smith-Dimmick  Lumber  Co.  v.  Teague,  119  Ala.  385,  24 
South.  4, 

352  Verplank  v.  Mercantile  Ins.  Co.,  2  Paige,  438.  "In  every 
ease,  where  the  court  is  asked  to  deprive  the  defendant  of  his  prop- 
erty without  a  hearing,  or  an  opportunity  to  oppose  the  application, 


I   110  EQUITABLE  REMEDIES.  2C8 

ing  tendency."^^^  The  supreme  court  of  Virginia 
says  :^^*  "This  court  has  been  emphatic  in  denunciation 
of  decrees  and  orders  entered  ex  parte,  and  without 
hearing  the  parties  interested  and  affected  by  such  de- 
crees and  orders."  And  the  general  tendency  of  the 
courts  at  present  seems  to  be  in  harmony  with  such 
criticism.^^*^ 

§  140.  Lack  of  Notice  as  Affecting  the  Appointment  in 
the  Various  Classes  of  Cases — In  Class  I — In  those  cases 
where  the  party  entitled  to  possession  is  not  competent 
to  hold  or  manage  the  property  during  the  litigation, 
notice  of  the  application  for  the  appointment  is  held 
to  be  necessary.  Thus  the  general  rule  as  to  notice  ap- 
plies to  the  property  of  infants,  so  that  in  a  suit  by  the 
vendor,  a  receiver  to  take  charge  of  land  sold  to  the 
deceased  father  of  minors  cannot  be  validly  appointed 
upon  notice  to  the  minor's  attorney.^^* 

the  particular  facts  and  circumstances  which  render  such  a  pro- 
ceeding necessary  should  be  set  forth."  This  would  seem  to  be 
obvious  from  the  fact  that  the  court,  and  not  the  plaintiff,  is  the 
one  to  judge  of  the  sufficient  emergency  of  the  case:  See  Fricker  v. 
Peters,  21  Fla.  254;  Moyers  v.  Coiner,  22  Fla,  422;  Jacksonville 
Ferry  v.  Stockton,  40  Fla.  141,  23  South.  557;  Nusbaum  v.  Locke, 
53  111.   App.   242. 

353  Eoberts  v.  Washington  Nat,  Bank,  9  Wash.  12,  37  Pac.  26; 
approved,  Larsen  v.  Winder,  14  Wash.  109,  53  Am.  St.  Rep.  864,  44 
Pac.  123. 

354  Fredenhien  v.  Eohr,  87  Va.  764,  13  S.  E.  193,  266,  citing 
Underwood  v.  McVeigh,  23  Gratt.  418,  as  a  notable  illustration  of 
the  wisdom  of  the  law  in  setting  its  face  against  such  orders. 

355  In  Illinois  it  is  said  (Gilbert  v.  Block,  51  111.  App.  516): 
"Courts  of  equity  are  exceedingly  averse  to  the  appointment  of  re- 
ceivers upon  ex  parte  applications."     See,   also,   Graver   &   S.   Mfg. 

Co.  V.  Whitman  etc.  Mfg.  Co.,  62  Til.  App.  313  (same);  Wabash  R, 
Co.  V.  Dykeman,  133  Ind.  56,  32  N.  E.  823;  Chicago  &  S.  E.  R.  Co. 
V.  Cason,  133  Ind.  49,  32  N.  E.  827.  See  Grandin  v.  Le  Bar,  2  N.  D. 
206,  50  N.  W.  151  (stating  that  to  warrant  an  ex  parte  appointment 
the  case  must  be  such  that  the  plaintiff  is  reasonably  sure  to  8U6- 
«eed). 

858  Hardy  v.  McClellan,  53  Miss.  507. 


269  APPOINTMENT  OF  RECEIVERS;  NOTICE.  §  141 

§  141.  In  Class  II — Partnership;  Conflicting  Claimants  of 
Land. — These  are  cases  where  all  the  parties  to  the  suit 
are  equally  entitled  to  the  possession  of  the  disputed 
property,  yet,  owing  to  the  controversy,  it  is  not  just 
and  proper  that  either  of  them  should  retain  possession 
during  the  litigation. 

On  application  for  a  receiver  of  a  partnership  it  is 
necessary  to  give  proper  notice,  unless  some  case  of 
emergency  be  shown  ;^^'^  thus  where  the  plaintiff  part- 
ner obtained  an  ex  parte  receiver  against  the  defend- 
ants, who  kept  the  books  and  managed  the  partnership 
finances,  the  order  of  appointment  was  reversed  as  not 
being  within  the  authority  of  the  court.^^^  But  if  the 
case  is  such  that  the  court  would  appoint  a  receiver 
with  notice,  the  defendant  may  waive  the  notice  and 
the  appointment  will  be  valid.^^^ 

In  suits  between  conflicting  claimants  of  land,  es- 
pecially between  parties  claiming  under  legal  titles,  a 
receiver  will  not  be  appointed  upon  an  ex  parte  applica- 
tion. Where  an  action  was  brought,  in  equity,  to  quiet 
title  to  real  estate,  a  receiver  was  appointed  to  take 

357  Maynard  v.  Railey,  2  Nev.  313;  Webb  v.  Allen,  15  Tex.  Civ. 
App.  605,  40  S.  W.  542  (stating  that  in  partnership  cases  the  same 
emergency  must  be  shown  as  in  ordinary  cases,  in  order  to  warrant 
appointment  without  notice);  Cole  v.  Price,  22  Wash.  18,  60  Pac. 
153  (stating  the  rule  as  generally  applied,  but  the  case  was  one 
of  emergency);  or  if  one  of  the  partners  be  a  non-resident:  Alford 
T.  Berkele,  29  Hun,  633.  As  to  what  constitutes  sufficient  notice, 
see  Allen  v.  Cooley,  53  S.  C.  414,  31  S.  E.  634. 

358  Martin  v.  Blanchin,  16  La.  Ann.  237;  and  where  a  partner 
sued  for  an  accounting  it  was  held  that  he  could  not  have  a  re- 
ceiver, nor  an  injunction  restraining  defendant  from  interfering 
with  the  firm  property,  until  notice  had  been  given:  Larsen  v.  Winder, 
14  Wash.  109,  53  Am.  St.  Rep.  864,  44  Pac.  123. 

359  Longstaff  v.  Hurd,  66  Conn.  350,  34  Atl,  91;  Veith  v.  Ress, 
60  Neb.  52,  82  N.  W.  116.  But  see  Pressley  v,  Harrison,  102  Ind. 
19,  1  N.  E.  188,  and  Pressley  v.  Lamb,  '105  Ind.  171,  4  N.  E.  682, 
to  the  point  that  mere  consent  cannot,  in  such  cases,  give  the  court 
authority  to  appoint  a  receiver. 


i  142  EQUITABLE  EEMEDIES.  270 

charge  of  the  growing  crops.  In  reversing  this  order, 
the  court  said :  "It  was  an  abuse  of  discretion  to  make 
an  ex  parte  order  appointing  a  receiver  of  the  crops 
sown  and  planted  by  defendant,  upon  land  where  de- 
fendant had  long  resided.  The  affidavit  upon  which 
the  order  was  made  showed  no  exigency  which  would 
justify  such  an  arbitrary,  harsh  proceeding. "2°° 

§  142.  In  Class  III — Persons  in  Position  of  Trust  or  Quasi 
Trust — Even  in  those  cases  where  the  defendant  is 
holding  the  property  as  a  trustee  or  quasi  trustee,  and 
is  violating  his  fiduciary  duties  by  misusing,  misapply- 
ing, or  wasting  the  property,  and  is  thereby  endanger- 
ing the  rights  of  the  parties  beneficially  interested,  the 
application  for  a  receiver  is  not  granted  without  no- 
tice unless  it  be  shown  that  the  equitable  right,  sought 
to  be  protected,  is  in  imminent  danger  of  loss,  or  it  is 
probable  that  the  defendant  will  dispose  of  the  trust 
■property  if  he  has  notice,  and  thereby  thwart  the  object 
of  the  application.  Thus,  on  a  bill  by  an  assignor  to 
charge  an  assignee,  as  trustee,  for  an  excessive  collec- 
tion on  a  life  insurance  policy,  the  verified  affidavit  of 
the  assignee's  insolvency,  and  his  conversion  of  the 
money  into  other  property,  showing  clear  probability 
of  immediate  loss,  was  the  ground  on  which  the  ap- 
plication without  notice  was  sustained.^^^  And  so,  in 
a  suit  against  an  administrator  for  a  contribution  as 
co-surety  due  from  the  deceased,  the  ground  support- 
ing the  bill  was  the  fact  that  the  administrator  was 
rapidly  selling  the  decedent's  assets,  and  had  no  prop- 
erty of  his  own  subject  to  execution,  thus  making  it 

360  Grandin  v.  Le  Bar,  2  N.  D.  206,  50  N.  W.  151;  see  Pom.  Eq. 
Jur.,  §  1333.     See,  also,  Miller  v.  Shriiier,  86  Ind.  493. 

3C1  Culver  v.  Guyer,  129  Ala.  602,  29  South.  779;  see  Pollard  v. 
Southern  Fertilizer  Co.,  122  Ala.  4G9,  25  South.  1G9;  and  see  Sim- 
mons V.  Wood,  45  How.  Pr.  262,  for  a  case  showing  that  the  mere 
fact   that   the   application    is   in   regard   to   trust   propertj    does   not 


271  APPOINTMENT  OF  RECEIVERS;  NOTICE.  §  143 

evident  that  the  plaintiff  would  be  damaged  bj  delay; 
the  receiver  was  therefore  allowed,  without  notice.^*- 

§  143.  In  Mortgage  Foreclosure. — As  stated  in  a  pre- 
vious paragraph,  the  grounds  on  which  a  receiver  is 
allowed  in  the  case  of  mortgaged  property,  are  gen- 
erally said  to  be  that  (1)  the  security  is  inadequate,  and 
(2)  the  mortgagor  insolvent,  committing  acts  of  waste, 
or  disposing  of  the  property,  or  its  crops  or  income,  so 
that  there  is  a  depreciation  of  the  value  of  the  property, 
and  security.  These  combined  circumstances  have,  at 
times,  given  rise  to  such  extraordinary  emergency  as  jus- 
tifies an  ex  parte  application.^^^  Thus  where  a  chattel 
mortgagor  was  insolvent,  and  was  squandering  the  pro- 
ceeds of  the  property  in  riotous  living,  it  was  held  proper 
to  appoint  a  receiver  without  notice.^^^  It  appears  on 
principle,  as  well  as  authority,  that  mere  wasting  of  the 
property,  insolvency,  or  inadequacy  of  security  are  none 
of  them  alone  sufficient  to  justify  an  ex  parte  appoint- 
ment, but  that  they  must  be  combined,  so  as  to  present 
a  case  where  there  would  be  imminent  danger  of  loss 
if  the  court  did  not  assume  control  before  notice  could 
be  properly  given.^®^ 

give  the  court  power  to  appoint  a  receiver,  on  an  ex  parte  applica- 
tion, in  cases  where  a  sound  discretion  would  require  notice;  also, 
Belknap  Sav.  Bank  v.  Lamar  Land  etc.  Co.,  28  Colo.  326,  64  Pac. 
212. 

362  Peter  v.  Kahn  (Ala.),  9  South,  729. 

363  See  ante,  §§  93,  95;  Ashurst  v.  Lehman,  86  Ala.  370,  5  South. 
731;  Hendrix  v.  American  Freehold  L.  &  M.  Co.,  95  Ala.  313,  11  South. 
213  (allowing  a  receiver  without  notice),  citing  early  cases.  Soe 
Gilbert  v.  Block,  51  111.  App.  516  (citing  cases) ;  Maish  v.  Bird,  59 
Iowa,  307,  13  N.  W.  298  (allowing  receiver  without  notice). 

364  O'Donnell  v.  First  Nat.  Bank,  9  Wyo.  408,  64  Pac.  337.  For 
further  instances  of  appointment  ex  parte  in  suits  to  foreclose  chat- 
tel mortgages,  see  H.  B.  Claflin  Co.  v.  Furtick,  119  Fed.  429;  Hag- 
gard V.  Sanglin,  31  Wash.  165,  71  Pac.   711. 

^jcs  Gilbreath  v.  N.  B.  &  T.  Co.,  121  Ala.  204,  25  South.  5S1; 
Moyers   v.   Coiner,   22   Fla.   422,   where   insolvency   was   not    alleged; 


}  144  EQUITABLE  EEMEDIES.  272 

§  144.  In  Creditors'  Suits. — In  the  case  of  creditors, 
having  a  judgment  or  other  lien  on  the  debtor's  prop- 
erty, there  must  be  shown  some  sufficient  reason  why 
notice  should  not  be  given,  in  order  to  warrant  an  ex 
parte  appointment.  If  the  debtor,  who  is  disposing  of 
his  property,  is  still  solvent,  there  seems  no  reason  for 
an  appointment  without  notice  f^®  or  if  the  one  to 
whom  the  goods  are  being  fraudulently  transferred  is 
able  to  respond  to  a  legal  demand,  notice  should  be 
given."^"  But  where  an  insolvent  debtor  had  fraud- 
ulently conveyed  all  his  property,  and  it  was  being 
wasted,  it  was  held  that  no  notice  was  necessary.^^^  If 
a  debtor  fraudulently  withdraws  himself  from  the  jur- 
isdiction, to  evade  process,  no  notice  is  necessary,  but, 
it  is  held,  the  mere  fact  that  he  is  absent  does  not  give 
the  plaintiff  a  right  to  seize  his  property  unless  there 
is  danger  of  immediate  loss.^^^     The  rights  of  creditors, 

Hutchison  v.  First  Nat.  Bank,  133  Ind.  271,  36  Am,  St.  Eep.  537,  30  N. 
E.  952;  Haugan  v.  Netland,  51  Minn.  552,  53  N.  W.  873;  see  Pearson 
T.  Kendrix,  74  Miss.  235,  21  South.  37,  which  was  affected  by  statute; 
Fletcher  v.  Krupp,  35  App.  Div.  586,  55  N.  Y.  Supp.  146;  Belknap 
Sav.  Bank  v.  Lamar  Land  etc.  Co.,  28  Colo.  326,  64  Pac.  212. 

366  Moritz  V.  Miller,  87  Ala.  331,  6  South.  269  (stating  if  the 
insolvency  had  existed,  the  appointment  would  have  been  made  ea? 
parte). 

36T  Thompson  v.  Tower  Mfg.  Co.,  87  Ala.  733,  6  South.  928. 

368  Heard  v.  Murray,  93  Ala.  127,  9  South.  514.  See,  also,  Peter 
T.  Kahn  (Ala.),  9  South.  729  (holding  an  allegation  of  deficiency  of 
legal  assets  sufficient  to  impart  equity  to  the  bill) ;  Bank  of  Florence 
T.  United  States  Sav.  &  Loan  Co.,  104  Ala,  297,  16  South.  110  (show- 
ing that  a  simple  bank  creditor  cannot,  on  the  insolvency  of  the 
bank,  obtain  a  receiver  on  ex  parte  application  and  thereby  im- 
press the  funds  with  a  prior  lien);  and  Smith-Dimmick  Lumber  Co. 
T.  Teague,  119  Ala.  385,  24  South.  4,  that  the  debtor's  insolvency 
and  the  fact  that  he  is  about  to  remove  his  property  does  not  de- 
prive him  of  the  right  to  notice;  see  Maxwell  v.  Peters  Shoe  Co., 
109  Ala.  371,  19  South.  412;  State  v.  Union  Nat.  Bank,  145  Ind.  537, 
57  Am.  St.  Rep.  209,  44  N,  E,  585;  Blondheim  v.  Moore,  11  Md.  365, 
one  of  the  leading  cases  on  the  subject. 

369  Sandford  v.  Sinclair,  8  Paige,  373;   and  see,  for  the  effect  of 


273  APPOINTMENT  OF  EECEIVERS;  NOTICE.  §  M5 

in  such  cases,  are  well  stated  in  a  leading  Mississippi 
case:  "Creditors  have  rights  which  should  be  upheld, 
so  have  others,  which  must  not  be  disregarded,"  and  the 
appointment  of  a  receiver,  in  such  case,  is  "never  with- 
out notice  to  them  (the  defendants)  and  an  opportunity 
to  be  heard,  unless  there  is  a  satisfactory  showing  of 
the  necessity  of  such  emergency. "^'^^ 

§   145.     In   Suits  by   Stockholders  Against   Corporation . 

In  a  suit  against  a  corporation  for  the  appointment  of  a 
receiver,  in  any  of  those  instances  where  a  receiver  is 
proper,  the  stockholders  must  conform  to  the  general 
practice,  and  give  proper  notice  of  the  application  un- 
less there  is  some  extremely  urgent  necessity  to  jus- 
tify a  departure  from  the  rule.  Thus  upon  a  suit  by 
a  minority  stockholder  to  obtain  a  receiver  on  the 
ground  of  unwise  management  of  the  property  by  the 
corporate  directors,  the  appellate  court,  in  reversing 
the  appointing  order,  said :  "Where  notice  can  be  given, 
it  should  be  given,  unless  there  is  imminent  danger  of 
loss  or  great  damage,  or  irreparable  injury,  or  the 
greatest  emergency,  or  when  by  the  giving  of  notice  the 
very  purpose  of  the  appointment  of  a  receiver  would  be 
rendered  nugatory."^^^     The  leading  case  in  regard  to 

a  code  provision  in  such  cases,  Grace  v.  Curtiss,  23  N.  Y.  Supp.  321, 
3  Misc.  Rep.  558;  Henry  v.  Furbish,  30  Misc.  Rep.  822,  62  N.  Y.  Supp. 
247;  O'Conner  v.  Mechanics'  Bank,  2  N.  Y.  Supp.  225,  18  N..  Y.  St. 
Rep.  88,  54  Hun,  272;  Leggett  v.  Sloan,  24  How,  Pr.  479  (as  to  what 
notice  is  sufficient);  Barnett  v,  Moore,  20  Misc.  Eep.  518,  46  N.  Y. 
Supp.  668  (as  to  waiver  of  notice  on  supplementary  proceedings); 
Corbin  v.  Berry,  83  N.  C.  27  (where  only  part  of  the  defendants 
appeared,  and  it  was  held  sufficient).  See  Ruffner  v.  Mairs,  33  W. 
Va.  655,  11  S.  E.  5. 

3-0   Buckley  v.  Baldwin,  69  Miss.  804,  13  South.  851. 

371  North  American  L.  &  T.  Co.  v.  Watkins,  109  Fed.  101,  48 
C,  C.  A.  254.  See,  also,  Fisher  v.  Superior  Court,  110  Cal.  129,  42 
Pac.  561;  French  v.  Gifford,  30  Iowa,  148;  State  v.  Second  J.  D.  Ct., 
20  Mont.  284,  50  Pac.  852. 

Equitable  Remedies,  Vol.  I — 18 


5  146  EQUITABLE  KEMEDIES.  274 

the  necessity  of  notice  of  an  application  for  a  receiver 
was  a  stockholders'  suit  against  a  corporation.^'^^ 

§  146.  In  Suits  by  Creditors  Against  Corporation. — Even 
in  those  instances  where  a  receiver  may  be  properly 
appointed,  in  suits  against  a  corporation  by  its  cred- 
itors, in  order  to  protect  their  rights,  the  courts  are  ex- 
tremely averse  to  making  an  appointment  without  no- 
tice having  been  given,  and  a  case  of  extreme  urgency 
and  necessity  must  be  clearly  shown  in  order  to  obtain 
an  ex  parte  appointment.^'^^ 

In  a  case  where  a  receiver  was  appointed  without 
notice,  on  the  ground  that  the  corporation  was  indebted 
to  various  persons,  and  had  equitable  interests  that 
could  not  be  reached  by  execution,  and  that  other  cred- 
itors had  threatened  to  bring  actions,  the  court,  in  re- 
versing the  order  of  appointment,  said:  "The  proceed- 
ing is  drastic.  It  takes  away  from  the  corporation 
all  control  of  its  property,  and  puts  it  in  the  hands  of  a 

stranger Cases    can    well    be    imagined    where 

great  interests  might  be  sacrificed  by  a  proceeding  with- 
out notice,"^'* 

372  Verplank   v.   Mercantile   Ins.   Co.,   2   Paige,   438. 

373  Mestier  v.  Chevallier  Pav.  Co.,  51  La.  Ann.  142,  24  South. 
799  (stating,  "But  we  are  aware  of  no  authority  for  the  appointment 
of  a  receiver  ex  parte  in  a  pending  suit  against  a  corporation,  as 
appears  to  have  been  done  in  this  case).  See  Gilbreath  v.  Trust  Co., 
121  Ala.  204,  25  South.  581;  Winchester  E.  L.  Co.  v.  Gordon,  143 
Ind.  681,  42  N.  E.  914;  approving  Sullivan  E.  L.  &  P.  Co.  v.  Blue, 
142  Ind.  407,  41  N.  E.  805.  As  to  creditors  of  railroad  corporations, 
Whitney  v.  N.  G.  &  A.  R.  Co.,  66  How.  Pr.  436.  As  to  a  municipal 
eorporalion,  State  vx  rel.  Brittin  v.  New  Orleans,  43  La.  Ann.  829,  9 
South.  643. 

37  4  Davelaar  v.  Blue  Mound  Inv.  Co.,  110  Wis.  470,  86  N.  W.  185 
("it  is  not  enough  to  say  that  the  facts  stated  show  the  plaintiff 
would  be  entitled  to  such  appointment  upon  notice,  and  that  after 
a  review  of  the  situation  the  court  has  decided  to  allow  the  appoint- 
ment  to   stand"). 


275  APPOINTMENT  OF  EECETVERS;   NOTICE.  {  147 

§  147.  Ex  Parte  Receivers  of  Railroads. — The  appoint- 
ment of  a  receiver  to  take  charge  of  a  railroad  and 
manage  it  is  such  an  extremely  important  undertaking, 
that  it  will  rarely  be  done  vi^ithout  notice  having  been 
given  to  the  defendant,  and  an  opportunity  of  defense 
offered.^'''^  The  supreme  court  of  Indiana  has  said :  "In 
passing  upon  an  application  for  the  appointment  of  a 
receiver,  it  is  the  duty  of  a  court  to  scrutinize,  not  only 
the  rights  asserted  by  the  moving  party,  but  the  in- 
juries that  may  be  suffered  by  the  adverse  party  and  the 
public  at  large.  This  is  particularly  the  case  where  a 
line  of  railroad  forming  part  of  a  system  operated  as  a 
unit  is  thereby  detached  from  the  main  road.  In  such 
cases  not  only  the  parties  to  the  suit  are  affected,  but 
a  large  number  of  employees  are  disturbed  in  their  re- 
lation with  their  employers;  and  the  general  public 
along  the  line  of  the  road  are  liable  to  be  greatly  incon- 
venienced by  the  disturbance  of  their  shipping  facili- 
ties  Deprived  of  possession,  the  payment  of  rent 

on  leased  lines  would  cease,  and  thereby  all  creditors 
and  stockholders  would  be  affected";  for  these  reasons 
the  court  held  that  it  was  error  to  appoint  a  receiver 
ex  parte,  though  expressly  stating  that  it  ventured  no 
opinion  as  to  the  propriety  of  an  appointment,  had 
proper  notice  been  given.^'^*     After  commenting  on  the 

375  Cher  V.  Excelsior  Planting  Co.,  44  La.  Ann.  570,  10  South. 
792  (construing  a  statute  so  that  notice  is  necessary  before  a  corpo- 
ration can  be  deprived  of  its  property) ;  Merriam  v.  St.  Louis,  C.  G. 
&  F.  S.  R.  Co.,  136  Mo.  145,  36  S.  W.  630;  St.  Louis,  K.  &  S.  R.  Co. 
V.  Wear,  135  Mo.  230,  33  L.  E.  A.  341,  36  S.  W.  357,  658  (a  vacation 
appointment  providing  for  appearance  three  months  hence,  controlled 
by  writ  of  prohibition) ;  Ramsey  v.  Erie  Ry.  Co.,  7  Abb.  Pr.,  N.  S., 
156;  People  ex  rel.  Port  Huron  &  G.  E.  Co.  v.  St.  Clair  Circuit  Judge, 
31  Mich  456  (holding  an  ex  parte  appointment,  in  case  of  a  railroad, 
"more  than  irregular,  and  absolutely  void");  Cook  v.  Detroit  etc 
E.  R.  Co.,  45  Mich.  453,  8  N.  W.  74. 

376  Wabash  R.  R.  Co.  v.  Dykeman,  133  Ind.  56,  32  N.  E.  823;  ap- 
proved, Chicago  &  S.  E.  E.  Co.  v.  Cason,  133  Ind.  49,  32  N.  E.  827. 


5  148  EQUITABLE  KEMEDIES.  276 

gravity  of  the  situation,  the  supreme  court  of  Florida, 
in  reversing  the  appointing  order,  says :  "We  can  hardly 
imagine  a  case  where  it  [the  appointment]  should  be 
done  without  notice."^'^'' 

§  148.  Selection  and  Eligibility  of  Receiver — In  General — 
Not  Disturbed  on  Appeal — In  the  selection  of  a  person  to 
act  as  receiver  the  court  acts  in  the  exercise  of  its  ju- 
dicial discretion,  aided  by  the  circumstances  of  the 
case  and  the  comparative  fitness  of  the  parties  pro- 
posed, choosing  such  person  as  it  considers  will  best 
subserve  the  rights  and  interests  of  all  parties  to  the 
controversy.^^^  The  questions  to  be  considered,  gen- 
erally, are  well  stated,  by  a  federal  case,^'^®  as  follows: 
"It  [the  court]  places  the  property  in  the  hands  of  a 
receiver,  whose  duty  it  is  to  preserve  it,  prevent  de- 
terioration, and  so  manage  it  that  the  rights  of  its  real 
owner  will  be  prejudiced  as  little  as  possible.  The 
person  selected  for  this  duty  must  possess  integrity  of 
character,  business  experience,  a  knowledge  of  affairs, 
a  capacity  for  the  examination  into  and  comprehen- 
sion of  accounts,  must  not  be  partisan,  and  must  have 
no  pecuniary  interest  in  any  one  of  the  classes  of  cred- 
itors whose  claims  come  before  the  court." 

877  State  V.  Jacksonville  P.  &  M.  E.  Co.,  15  Fla.  201;  approved  in 
Stockton  V.  Harman,  32  Fla.  312,  13  South.  833. 

378  Thomas  v.  Dawkina,  1  Ves.  452;  Morison  v.  Morison,  4  Mylne 

6  C.  215;  Perry  v.  Oriental  Hotel  Co.,  L.  R.  5  Ch.  420;  People  em 
rel.  Gore  v.  111.  Bldg.  &  L.  Assn.,  56  111.  App.  642;  Robinson  v. 
Dickey,  143  Ind.  214,  42  N.  E.  638;  Borton  v.  Brines-Chase  Co.,  175 
Pa.  St.  209,  34  Atl.  597  (refusing  to  appoint  a  foreign  receiver); 
Shannon  v.  Hanks,  88  Va.  338,  13  S.  E.  437.  And  thus,  where  it 
would  "facilitate  matters"  and  be  to  the  "advantage  of  all  parties 
interested,"  a  foreign  receiver  was  appointed:  Taylor  ▼.  Life  Assn. 
of  America,  3  Fed.  465;  also,  Bayne  v.  Brewer  Pottery  Co.,  82  Fed. 
S91. 

879  Farmers'  L.  &  T.  Co.  v.  Cape  Fear  &  G.  V.  B.  Co.,  62  Fed.  675 
(and  these  requisites  may  be  present,  though  the  appointed  party  ia 
not  a  citizen  of  the  appointing  jurisdiction). 


277  RECEIVERS;  SELECTION  AND  ELIGIBILITY.  8   149 

The  selection  of  a  receiver,  being  a  matter  addressed 
to  the  discretion  of  the  court,  is  not  generally  disturbed 
on  appeal.  It  is  stated  that  "  convincing  circum- 
stances, amounting  to  an  overwhelming  objection  in 
point  of  propriety  of  choice,  or  something  fatal  in 
principle  must  be  shown  to  secure  a  reversal  by  an 
appellate  tribunal."^ 

§  149.  Appointment  of  Person  Interested  in  the  Suit. — 
Accordingly,  it  is  generally  stated  that  a  person  will 
not  be  appointed  who  is  interested  in  the  outcome  of 
the  suit,  it  being  considered  that  such  interest  will  in- 
terfere with  the  proper,  impartial  management  of  the 
entrusted  property.  Thus,  "a  receiver  should  have  no 
personal  interest  in  the  controversy,  or  in  the  property 
in  his  charge,  which  would  prevent  the  exercise  of  his 
duties  and  powers  without  favor  to  either  party. "^"^^ 
While  the  soundness  of  this  rule  is  undoubted,  there  are 
certain  cases  in  which  the  receiver,  for  various  reasons, 
has  been  selected  from  among  the  interested  parties; 
as  where  the  parties  consented  to  such  appointment,^^^ 

380  People  ex  rel.  Gore  v.  111.  Bldg.  &  L.  Assn.,  56  111.  App.  642. 
See,  also,  Perry  v.  Oriental  Hotel  Co.,  L.  R.  5  Ch.  420;  McGilliard  t. 
Donaldsonville  etc.  Works,  104  La.  Ann.  544,  81  Am.  St.  Rep.  145, 
29  South.  254;  Shannon  v.  Hanks,  88  Va.  338,  13  S.  E.  437;  as  to  when 
the  question  may  be  raised,  see  Rogers  v.  Rogers  (Tenn.  Ch.  App.),  42 
S.  W.  70. 

381  Watson  V.  Bettman,  88  Fed.  825  (refusing  to  appoint  a  per- 
son otherwise  well  qualified).  See,  also.  Cooper  v.  Leather  Mfg. 
Nat.  Bank,  29  Fed.  161;  Bayne  v.  Brewer  Pottery  Co.,  82  Fed.  391; 
Atkins  V.  Wabash  St.  L.  &  P.  R.  Co.,  29  Fed.  161;  In  re  Lloyd,  L. 
R.  12  Ch.  D.  447;  Etowah  Min.  Co.  v.  Wills  V.  M.  &  M.  Co.,  106 
Ala.  492,  17  South.  522  ("a  receiver  appointed  by  the  court  should 
be  capable,  honest,  impartial,  and  without  personal  interest  to  serve")  ; 
approved  in  Jordan  v.  Jordan,  121  Ala.  419,  25'  South.  855. 

382  Tait  V.  Carey  (Ind.  Ter.),  49  S.  W.  50;  Iroquois  Furnace  Co. 
V.  Kimbark,  85  III.  App.  399  (where  they  had  previously  agreed  a« 
to  who  should  be  appointed)  ;  Hanover  Fire  Ins.  Co.  v.  Grermania 
Fire  Ins.  Co.,  33  Hun,  539. " 


§  149  EQUITABLE  REMEDIES.  278 

or  where  a  receiver  is  appointed  merely  as  an  aid  in 
the  settling  of  an  estate,  and  it  is  clear  that  the  de- 
fendant's possession  can  do  no  harm,^^^  or  in  the  case 
of  a  temporary  appointment.^^*  And  there  are  cases 
in  which  a  receiver  has  been  appointed  because  of  his 
intimate  knowledge  of  the  business  to  be  transacted,  re- 
gardless of  the  fact  that  he  was  an  interested  party. 
It  must,  indeed,  be  a  strong  case  to  warrant  such  ac- 
tion, but  where  a  business  is  extremely  complicated, 
and  an  experienced  manager  necessary,  from  a  practica! 
business  standpoint,  it  may  be  advisable  to  have  it  con- 
tinue in  the  hands  of  one  acquainted  with  its  manage- 
ment when  he  can  be  controlled  by  the  court.^^^ 

383  Eobinson  v.  Taylor,  42  Fed.  803. 

384  Finance  Co.  v.  Charleston    C.  &  C.  R.  Co.,  45  Fed.  436. 

385  Fowler  v.  Jarvis-Conklin  Mtg.  Co.,  63  Fed.  888,  stating,  on 
refusing  a  motion  to  discharge  a  receiver  who  had  been  an  officer 
of  the  corporation:  "It  was  well  known  to  the  court  where  they 
were  appointed,  that  it  was  under  their  management  of  its  affairs 
that  the  corporation  came  to  grief,  and  it  would  be  no  surprise  to 
the  court  to  learn  that  their  business  judgment  had  not  been 
sound;  that  their  method  of  management  had  not  been  conservative; 
that  they  had  been  over-sanguine,  and  improvident  in  investments. 
But  it  was  apparent  to  the  court  then,  and  it  is  equally  apparent 
now,  that  a  business  of  such  character,  so  complicated  and  intricate, 
so  widely  extended,  with  millions  of  dollars  on  small  mortgages 
scattered  through  several  states,  requiring  prompt  attention  for 
collection  of  interest,  maintaining  of  insurance,  and  payment  of 
taxes,  would  be  best  attended  to  by  receivers  who,  presumably, 
were  familiar  with  all  its  details  and  with  the  machinery  already 
established  for  looking  after  its  interests  in  hundreds  of  small  towua 
and  hamlets  in  different  states.  As  receivers  there  would  be  no 
new   investments  for  them   to   make,   calling  for  the   exercise   of   a 

discretion  which  had  in  the  past  proved  to  be  not  always  wise 

The  mere  fact  that  they  had,  while  officers  of  the  company,  been 
imprudent  in  investing  its  money,  was  no  sufficient  ground  for  select- 
ing strangers  entirely  unfamiliar  with  its  assets  or  the  machinery 
for  their  collection,"  See,  to  the  same  effect,  People  ex  rel.  Gore  v 
Illinois  Bldg.  &  L,  Assn.,  56  El.  App.  642,  the  court  selecting  an  in- 
terested party  because  of  his  "fitness  for  the  position  by  reason  of 
his  occupation,  experience  and  character";  Iroquois  Furnace  Co.   v. 


279  RECEIVEES;  SELECTION  AND  ELIGIBILITY.         §  150 

§  150.  Appointment  of  Master  in  Chancery;  of  Trustee; 
of  Solicitor. — It  is  generally  true  that  the  court  will  be 
slow  to  appoint  one  as  receiver,  whose  position  will 
be  lia!)le  to  interfere  with  the  proper  exercise  of  his 
duties.  On  these  grounds  a  master  in  chancery  has 
been  held  to  be  improperly  appointed,  the  court  saying: 
"Nor  will  a  man  be  appointed  receiver  whose  position 
may  cause  difficulty  in  administering  justice.  A  mas- 
ter in  chancery,  accordingly,  was  disqualified  from  be- 
ing appointed  a  recei  ver,  because,  being  an  officer  whose 
duty  it  might  be  to  pass  upon  the  accounts  and  check 
the  conduct  of  the  receiver,  his  appointment  was  open 
to  objection  on  very  obvious  grounds."^^^  On  these 
grounds,  it  is  generally  held  that  a  trustee  shall  not  be 
appointed  to  the  office;  the  court  saying  that  the  trus- 
tee should  be  the  one  to  check  the  accounts  of  the  re- 
ceiver in  favor  of  the  beneficiaries.^*^  But,  as  in  other 
cases,  if  the  trustee  is  the  most  acceptable  person  avail- 
able, he  may,  in  special  cases,  be  appointed  without 
compensation.^** 

One  of  the  grounds  on  which  the  court  refuses  to  ap- 
point a  solicitor  of  one  of  the  parties  to  the  office  of  re- 
ceiver is,  that  in  the  service  of  his  client  it  may  be- 
come the  duty  of  the  solicitor  to  call  the  receiver  to 

Kimbark,  85  111.  App.  399;  Balles  v.  Duff,  54  Barb.  215,  a  case  where 
mortgagee  of  mortgaged  premises  was  appointed.  For  further  in- 
stances of  interested  parties  appointed  as  receivers,  see  early  cases 
cited  in  Taylor  v.  L.  Ins.  Co.  of  Am.,  3  Fed.  465,  and  the  eases  cited 
post  in  regard  to  receivers  of  partnership  and  corporation  property. 

386  Ex  parte  Fletcher,  6  Ves.  427,  quoted  approvingly  in  Kilgore 
V.  Hair,  19  S.  C.  486;  approved  in  Allen  v,  Cooley,  60  S.  C.  353,  38 
S.  E.  622;  Bemeson  v.  Bill,  62  111.  408.  In  In  re  Lloyd,  L.  E.  12  Ch. 
D.  447,  a  solicitor  was  refused  on  the  same  grounds.  But  this  ob- 
jection does  not  extend  to  a  clerk  of  the  court,  who  may  be  a  proper 
person:  Waters  v.  Melson,  112  N.  C.  89,  16  S.  E.  918. 

387  Thomas  v.  Hawkins,  1  Ves.  452,  and  note  2;  Anon.,  3  Ves. 
515;  V.  Jolland,  8  Ves.  72;  Sutton  v.  Jones,  15  Ves.  584. 

388  Sykes  v.  Hastings,  11  Ves.  363. 


§   151  EQUITABLE  REMEDIES.  280 

account,^*^  and  the  two  characters,  being  incompatible, 
cannot  be  united,  as  it  would  result  in  the  receiver 
supervising  his  own  acts.^^^  The  interest  that  a  so- 
licitor has,  in  favor  of  the  client  he  represents,  has  also 
been  urged  as  a  valid  reason  for  his  non-appointment, 
or  his  removal  where  he  was  properly  appointed  as 
temporary  receiver.^^^ 

§  151.  Appointment  of  Partner;  of  Creditor. — In  the  cases 
where  a  partnership  is  placed  under  the  control  of  the 
court,  one  of  the  partners  has,  in  many  instances,  been 
appointed  receiver,  the  fact  of  his  being  an  interested 
party  not  disqualifying  him,  in  the  absence  of  other  ad- 
ditional objections.  It  has  been  said:  "The  courts 
have,  therefore,  been  inclined,  where  there  has  been  no 
actual  misconduct,  to  appoint  as  receiver  the  manag- 
ing partner,  or  the  partner  most  interested."^^^  But 
in  such  case  the  partner-receiver  is  allowed  no  com- 
pensation for  his  services.^^' 

While  a  creditor  is  pecuniarily  interested  in  the 
settlement  of  the  controversy,  this  fact  alone  does  not 
appear  to  affect  his  eligibility  to  the  position  of  re- 

389  Ex  parte  Pericke,  2  Mer,  452;  Stone  v.  Wishart,  2  Madd.  G7 
(where  the  same  principle  was  applied  to  the  next  friend  of  an  in- 
fant). Such  appointment  is  prohibited  by  statute  in  some  jurisdic- 
tions: See  Cook  v.  Martin  (Ark.),  87  S.  W.  625^ 

3'JO  Garland  v.  Garland,  2  Ves.  Jr.  137;  Merchants'  &  Mfg.  N.  Bank 
of  D.  V.  Kent  Cir.  J.,  43  Mich.  292,  5  N.  W.  627  (extending  the  rule  to 
the  partner  of  the  solicitor). 

391  Finance  Co.  of  Penn.  v.  Charleston  C.  &  C.  R.  Co.,  45  Fed.  436; 
State  Trust  Co.  of  N.  Y.  v.  Nat.  L.  I.  &  Mfg.  Co.,  72  Fed.  575,  making 
him  ineligible  for  permanent  appointment:  Bak-er  v.  Admrs.  of  Backus, 
32  111.  79. 

392  Todd  V.  Rich,  2  Tenn.  Oh.  107;  Blakeney  v.  Dufour,  15  Beav.  40; 
Wilson  V.  Greenwood,  1  Swans.  471;  Brien  v.  Harriman,  1  Tenn.  Ch. 
467,  stating:  "  It  is  an  imusual  order  and  can  only  be  sustained  by  hia 
acting  without  compensation." 

898  Cases  cited  supra  in  note  392. 


281  RECEIVERS;   SELECTION  AND  ELIGIBILITY.  §   L52 

ceiver;  it  is  said:  "There  is  no  rule  of  law  that  a  cred- 
itor cannot  be  appointed  receiver. "^^^ 

§  152.  Appointment  of  Corporation  Officer. — In  the  ap- 
pointment of  a  receiver  to  take  charge  of  the  property 
of  a  corporation,  the  general  rule  is  not  to  appoint 
those  who  have  been  connected  with,  or  responsible  for, 
its  unfortunate  condition,  rendering  it  necessary  for  the 
court  to  assume  its  control.^^*^  The  reasons,  as  gen- 
erally stated,  are  two:  First,  the  probable  lack  of  busi- 
ness ability,  as  explained  by  a  leading  federal  case  in 
the  following  language:  "  But  it  has  been  the  uniform 
practice  in  this  circuit  to  appoint  no  one  receiver  of  a 
railroad  corporation  who  has  been  one  of  its  officers,  or 
who  had  anything  to  do  with  its  control  prior  to  its 
insolvency.  It  has  always  been  thought  that  while  the 
insolvency  of  the  company  might  have  been  caused  by 
misfortune,  and  by  no  default  of  its  direction,  never- 
theless those  who  were  about  to  lose  their  property,  or 
had  it  placed  in  jeopardy,  were  entitled,  in  all  reason 
and  fairness,  to  a  new  management,  though  perhaps 
not  a  better  one.  In  the  one  case,  there  is  some  hope; 
in  the  other,  there  can  be  expected  but  the  former  re- 
sult."^*^^    The  further  reason,  that  they  are  frequently 

394  Chamberlain  v.  Greenleaf,  4  Abb.  N.  C.  92.  See,  also,  Barber 
V.  International  Co.  of  Mexico,  73  Conn.  587,  48  Atl.  758;  Barker  v. 
Wayne  Circuit  Judge,  117  Mich.  325,  75  N.  VV.  886;  Roby  v.  Title 
G.  &  T.  Co.,  166  111.  336,  46  N.  E.  1110  (where  a  receiver's  becoming 
a  creditor  did  not  disqualify  him ) . 

395  See  cases  cited  in  notes  396  and  397.  But  there  seems  to  be 
no  objection  to  a  corporation,  as  such,  being  a  receiver :  Roby  v.  Title 
O.  &  T.  Co.,  166  111.  336,  46  N.  E.  1110;  Barker  v.  Wayne  County  Judge, 
117  Mich.  325,  75  N.  W.  886;  Barber  v.  International  Co.  of  Mexico, 
73  Conn.  587,  48  Atl.  758. 

396  Finance  Co.  of  Penn.  v.  Charleston  C.  &  C.  R.  Co.,  45  Fed. 
436  (refusing  both  a  former  counsel  and  an  officer  as  permanent  re- 
ceiyer).  See,  also,  Buck  v.  Piedmont,  etc.  Ins.  Co.,  4  Fed.  849,  4 
Hughes,   415;    People  v.   Third  Avenue   Sav.   Bank,   50   How.   Pr.   22; 


§   153  EQUITABLE  KEMEDIES.  2S2 

interested  parties,  while  applying  particularly  to  stock- 
holders, is  at  times  a  pertinent  objecl^ion  to  an  officer 
or  manager,  especially  when  he  happens  to  occupy  both 
positions;  thus  it  is  said:  "Receivers  should  be  im- 
partial between  the  parties  in  interest,  and  stockholders 
and  directors  of  insolvent  corporations  should  not  be 
appointed,  unless  the  case  is  exceptional  and  urgent, 
and  then  only  on  the  consent  of  the  parties  whose  in- 
terest is  to  be  intrusted  to  their  charge."^^' 

§  153.  Same;  Officers  or  Stockholders  Appointed  from 
Necessity. — While  the  rule  as  to  the  non-appointment  of 
officers,  directors  or  stockholders  to  be  receivers  over 
the  corporate  property  is  well  settled  by  authority,  and 
founded  on  practical  reasons,  the  courts  are  confronted, 

Freeholders  of  Middlesex  v.  State  Bank,  28  N.  J,  Eq.  166,  approved 
in  McCullougli  v.  Merchants'  L.  &  T.  Co.,  29  N.  J.  Eq.  217. 

397  Atkins  V.  Wabash  St.  L.  &  P.  R.  E.  Co.,  29  Fed.  161,  removing 
a  receiver  because  of  his  interest;  Olmstead  v.  Distilling  &  Cattle 
Feeding  Co.  (111.),  69  Fed.  24,  stating,  when  removing  a  receiver: 
"I  have  never  felt  that  an  officer  of  a  corporation,  whose  misfortunes 
necessitated  a  receivership,  should  be  ineligible  to  employment  by 
the  court,  but  this  case  convinces  me  that  where  a  corporation  is  one 
that  covers  a  vast  diversity  of  conflicting  interests,  and  especially 
of  speculation,  a  stockholder's  appointment  to  a  receivership  should 
be  preceded  by  a  most  careful  and  thorough  scrutiny  into  his  official 
and  personal  antecedents  and  interests."  ....  "Indeed,  I  will 
knowingly  accept  no  man  as  a  receiver  for  any  corporation  who  is, 
or  who  has  been,  a  speculator  in  its  stock.  The  private  interest  of 
the  man  is  very  apt  to  color,  if  not  to  overcome,  the  duty  of  the 

official Especially  is  it  the  need  of  the  day  that  officials  who 

only  come  in  contact  with  these  affairs  by  virtue  of  their  office 
should  keep  clean  of  any  personal  intermeddling  that  might,  even  re- 
motely, tend  to  affect  their  official  conduct."  See,  also,  Etowah  Min. 
Co.  v.  Manufacturing  Co.,  106  Ala.  492,  17  South.  522  (stockholder); 
Mercantile  Trust  &  D.  Co.  v.  Water  Co.,  Ill  Ala.  119,  19  South.  17 
(but  the  appointment  of  such  interested  person  is  not  void);  People 
ex  rel.  Gore  v.  Illinois  Bldg.  &  L.  Assn.,  56  111.  App.  642  (but  the 
stockholder  may  remove  the  objection  by  a  bona  fide  transfer  of 
his  stock  before  appointment);  Wiswell  v.  Starr,  48  Me.  401  (stock- 
holder). 


283  RECEIVERS;   SELECTION   AND  ELIGIBILITY.         }  153 

on  the  other  hand,  with  the  fact  that  in  many  eases  the 
business  of  a  large  corporation  is  so  complicated,  and 
requires  such  expert  and  experienced  management  for 
its  profitable  continuance,  that  it  is  absolutely  neces- 
sary to  retain,  as  receiver  and  manager,  one  who  is 
thoroughly  familiar  with  the  workings  of  the  busi- 
ness.^^^  Thus  it  was  said:  "I  concede  that,  when  a 
court  assumes  control  of  an  insolvent  corporation,  it  is 
preferable  to  take  it  entirely  out  of  the  hands  of  its 
managing  officers.  But  there  is  no  inflexible  rule  ren- 
dering such  officers  ineligible  to  appointment  as  re- 
ceivers." The  president  of  the  corporation  was,  there- 
fore, retained  as  receiver  because  of  his  "good  manage- 
ment as  president  of  the  company ;  his  knowledge  of  its 
requirements,  gained  by  practical  experience;  his  well- 
known  character  as  a  capable,  honest,  and  fair-minded 
man."399 

As  a  receiver  is  selected  with  reference  to  the  wel- 
fare of  the  property  to  be  handled,  it  is  not  an  absolute 
requisite  that  he  be  a  resident  of  the  jurisdiction  where 

398  Fowler  v.  Jarvis-Conklin  M.  &  F.  Co.,  63  Fed.  888,  66  Fed. 
14  (see,  also,  for  the  advisability  of  appointing  one  interested,  ex- 
perienced receiver,  and  one  disinterested  one);  to  the  same  effect, 
Olmstead  v.  Distiling  etc.  Co.,  67  Fed.  24;  see  In  re  Premier  Cycle 
Mfg.  Co.,  70  Conn.  473,  39  Atl.  800;  People  ex  rel.  Gore  v.  Illinois 
Bldg.  &  L.  Assn.,  56  111.  App.  642  (stockholder  selected);  Davis  v. 
Duncan,  19  Fed.  477;  Houston  v.  Redwine,  85  Ga.  130,  11  S.  E,  662; 
Moran  v.  Wayne  Circuit  Judge,  125  Mich.  6,  83  N.  W.  1004;  Covert 
V.  Rogers,  38  Mich.  368;  Gypsum  Plaster  &  Stucco  Co.  v.  Adsit,  105 
Mich.  498,  63  N.  "W.  518.  See,  also.  Bowling  Green  Trust  Co.  v.  Vir- 
ginia Pass.  &  Power  Co.,  133  Fed.  186. 

399  Ralston  v.  Washington  &  C.  R.  Ry.  Co.,  65  Fed.  557.  See 
McGilliard  v.  Donaldsonville  etc.  Works,  104  La.  Ann.  544  81  Am. 
St.  Rep.  145,  29  South.  254;  stating  that,  "Ordinarily,  the  fact  that 
a  receiver  has  an  interest  is  a  recommendation  that  he  will  safeguard 

the   interests  of  his  fellow  stockholders   as  well   as  his   own 

We  will  not   assume,  without  testimony,  that  the  one   appointed  is 
not  a  proper  person,  exclusively  because  he  is  a  stockholder," 


i  153  EQUITABLE  EEMEDIES.  28-1 

appointed,   if  he  is  a  thoroughly  desirable  person  on 
other  grounds.*"" 

400  Bayne  v.  Brewer  Pottery  Co.,  82  Fed.  391  (though  the  non- 
residence  occasion  an  additional  expense);  see  Farmers'  L.  &  T.  Co. 
V.  Cape  Fear  &  G.  V.  E.  Co.,  62  Fed.  675;  Phinizy  v.  Augusta  &  K. 
K.  Co.,  56  Fed.  273  (for  recognition  of  foreign  receiver  on  the  ground 
of  comity);  Borton  v.  Brines-Chase  Co.,  175  Pa.  St.  209,  34  Atl.  597, 
(but  not  where  it  will  interfere  with  the  interests  of  citizens  of  the 
state);  see  Chamberlain  v.  Greenleaf,  4  Abb.  N.  C.  92,  stating  that 
a  non-resident  should  not  be  appointed. 

See,  also,  post,   chapter  XI,  "Foreign   and   Ancillary   Eeceiverg." 


THE  BECEiVEK'b  POfcitSESSlON. 


i  154 


CHAPTER  IV. 


THE  RECEIVER'S  POSSESSION;  AND  CONFLICTING 
APPOINTMENTS. 


ANALYSIS. 

The  receiver's  possession. 

The   receiver's  possession   is  that   of  the  court. 

Receiver's  possession  is  subject  to  existing  liens. 

Same;  instances  of  prior  liens  protected. 

Same;    receiver's    right    to    possession    as   against    prior 

lienor. 
Receiver's  title  vests  from  order  of  appointment. 
Contra;  title  dates  from  qualification,  or  from  the  time 

when  he  takes  actual  possession. 
Vesting  of  title  in  supplementary  proceedings. 
How    the    receiver    may    obtain    possession    of    property 

withheld. 
Interference    with    receiver's   possession. 
Claimant  must  apply  to  the  court. 
Interference  with   receiver  a  contempt  of  eourt. 
His  possession  protected  by  injunction. 
Attachment  against  receiver. 
Property  in  receiver's  possession    not    subject    to  sale 

under  execution. 
Same;    illustrations;    execution   sales   under   lubsequent, 

and  under  prior,  liens. 
Property  in  receiver's  possession  cannot  be  seized  for 

taxes. 
Other  forms  of  interference;  strikes;  arrest;  etc. 
Conflicting  appointments  of  receivers. 


«§ 

154-169. 

§  154. 

S  155. 

S  156. 

fi  157. 

S  158. 

1  159. 

§  160. 

i   161. 

<9 

162-169. 

i  162. 

I  163. 

S  164. 

S  165. 

§  166. 

i  167. 

1  168. 

f  169. 

1  170. 

§  154.  Keceiver's  Possession  is  that  of  the  Court. — A  re- 
ceiver is  not  a  mere  agent  of  the  complainants,  in  the 
suit  in  which  he  is  appointed.  He  represents  the  court 
for  all  the  parties  interested  in  the  property,  and  acts, 
instead  of  the  court,  for  the  benefit  of  all  interested 
parties.  He  is  the  "servant  of  the  court"  His  posses- 
sion is  the  possession  of  the  court;  and  any  attempt  to 


^  154  EQUITABLE  REMEDIES.  286 

interfere  with  it,  without  leave  of  court,  is  a  contempt.* 
It  is  said :  "The  appointment  of  a  receiver  does  not  de- 
termine any  right  or  affect  the  title  of  either  party  in 
any  manner  whatever.  He  is  the  officer  of  the  court, 
and  truly  the  hand  of  the  court.  His  holding  is  the 
holding  of  the  court  from  him  from  whom  possession 
was  taken.  He  is  appointed  on  behalf  of  all  parties 
and  not  on  behalf  of  the  plaintiff  or  of  one  defendant 
only."2 

It  is  frequently  stated  that  "the  possession  of  the  re- 
ceiver is  the  possession  of  the  party  ultimately  held 
to  be  entitled  to  the  property."     A  federal  court,  in  com- 

1  Morrell  v.  Noyes,  56  Me.  458,  96  Am.  Dee.  486.  See,  also,  Chicago 
Union  Nat.  Bank  v.  Bank  of  K.  C,  136  U.  S.  223,  10  Sup.  Ct.  1013,  34 
L.  ed.  341,  stating:  "A  receiver  derives  his  authority  from  the  act 
of  the  court  appointing  him,  and  not  from  the  act  of  the  parties  at 
whose  suggestion  or  by  whose  consent  he  is  appointed;  and  the  utmost 
effect  of  his  appointment  is  to  put  the  property  from  that  time  into 
his  custody,  as  an  officer  of  the  court,  for  the  benefit  of  the  party 
ultimately  proved  to  be  entitled,  but  not  to  change  the  title  or  even 
the  right  of  possession  in  the  property."  See,  also,  Naumburg  v. 
Hyatt,  24  Fed.  898;  Southern  Granite  Co.  v.  Wadsworth,  115  Ala. 
570,  22  South.  157;  In  re  Receivership  of  New  Iberia  Cotton  Mill  Co., 
109  La.  875,  33  South.  903  (receiver  is  agent  of  court,  and  property  is 
in  custodia  Icgis);  Day  v.  Postal  Tel.  Co.,  66  Md.  354,  7  Atl.  608; 
Mays  V.  Rose,  Freem.  Ch.  (Miss.)  703;  Moore  v.  Mercer  Wire  Co.  (N. 
J.),  15  Atl.  305,  737;  Keeney  v.  Home  Ins.  Co.,  71  N.  Y.  396,  27  Am. 
Rep.  60;  Skinner  v.  Maxwell,  68  N.  C.  400;  Robinson  v.  Atlantic  &  G. 
W.  Ry.  Co.,  66  Pa.  St.  160. 

2  Ellicott  V.  Warford,  4  Md.  85;  quoted  approvingly  in  How- 
ell V.  Hough,  46  Kan,  152,  26  Pac.  636.  In  Bell  v.  American 
Protective  League,  163  Mass.  558,  47  Am.  St.  Rep.  481,  40  N. 
E.  857,  28  L.  R.  A.  452,  the  court  states:  "A  receiver  is  merely 
a  ministerial  officer  of  the  court,  or,  as  he  is  sometimes  called,  the 
hand  of  the  court.  The  title  to  the  property  does  not  change;  and 
if  he  is  required  to  take  property  into  his  custody,  such  custody  is 
that  of  the  court."  But  it  seems  there  is  such  "special  property" 
vested  in  a  receiver  that  an  indictment  may  be  properly  laid,  desig- 
nating him  as  the  owner,  where  property  in  his  charge  has  been  the 
subject  of  larceny;  the  court  of  Iowa  has  so  held:  State  v.  Rivers,  60 
Iowa,  381,  13  N.  W.  73,  14  N.  W.  738. 


287  THE   EECEIVEE'S  POSSEbSION.  S   155 

meriting  on  the  expression,  says  such  words  are  cer- 
tainly "not  intended  to  be  authority  for  the  proposition 
that  the  intervention  of  the  court  operates  to  change 
the  rights  of  any  parties  to  the  suit,  whether  they  were 
originally  parties,  or  made  such  by  subsequent  order  of 
the  court.  The  property  is  taken  by  the  court,  and  is 
put  into  the  hands  of  its  officer  to  hold  for  the  benefit  of 
^whom  it  may  concern.'  He  holds  and  manages  it  for 
the  benefit  of  the  party  to  whom  the  court  may  ulti- 
mately decide  it  belongs,  but  it  would  be  a  perversion  of 
the  whole  theory  of  ciistodia  legis  if  the  mere  appoint 
ment  of  a  receiver  were  itself  determinative  of  that  'ulti- 
mate decision.'  "^ 

§  155.  Receiver's  Possession  Subject  to  Existing  Liens. — 
It  is  well  established  that  where  a  court  takes  posses- 
sion of  the  property  of  a  party,  and  appoints  a  receiver, 
to  administer  the  trust  for  the  benefit  of  all  interested 
parties,  the  court  receives  such  property  impressed  with 
all  existing  rights  and  equities,  and  the  relative  rank 
of  claims  and  the  standing  of  liens  remain  unaffected 
by  the  receivership.  Every  legal  and  equitable  lien 
upon  the  property  is  preserved  with  the  power  of  en- 
forcing it.^     "The  receivership  does  not  destroy  any 

3  Central  Trust  Co.  v.  Worcester  Cycle  Mfg.  Co.,  93  Fed.  712, 
35  C.  C.  A.  547  (citing  the  following  cases  in  which  the  form  of 
words  discussed  was  used:  Wiswall  v.  Sampson,  14  How.  52,  14 
L.  ed.  322;  Booth  v.  Clark,  17  How.  322,  15  L.  ed.  164;  Chicago 
Union  Bank  v.  Kansas  City  Bank,  136  U.  S.  223,  10  Sup.  Ct. 
1013,  34  L.  ed.  341).  See,  also,  Beverley  v.  Brooke,  4  Gratt.  187, 
208.  That  the  appointment  of  a  receiver  of  real  property  does  not 
so  alter  possession  of  the  estate  in  the  person  who  is  ultimately  found 
to  have  been  entitled  thereto  as  to  prevent  the  running  of  the  statute 
of  limitations,   see  Anonymous,  2   Atk.   15. 

4  American  Trust  &  Sav.  Bank  v.  McGettigan,  152  Ind.  582,  71 
Am.  St.  Kep.  345,  52  N.  E.  793.  In  In  re  Binghamton  General  Elec- 
tric Co.,  143  N.  T.  263,  38  N.  E.  297,  the  court  says:  "It  is  obvious 
that  every  lien  upon  the  property  of  a  corporation  resting  upon  valid 


I  156  EQUITABLE  REMEDIES.  289 

liens  that  may  have  been  acquired  before  the  appoint- 
ment."^ It  is  said  that  "it  is  as  much  the  duty  of  a  re- 
ceiver, in  administering  an  estate,  to  protect  valid  pref- 
erences and  priorities,  as  it  is  to  make  a  just  distribu- 
tion"  of  the  intrusted  property.® 

§  156.  Same;  Instances  of  Prior  Liens  Protected. — The 
application  of  the  rule  is  well  recognized  in  the  case  of 
liens  of  creditors  of  insolvent  corporations  over  which 
receivers  have  been  appointed.''^  Thus,  it  is  said : 
"Where  the  receiver  of  this  court,  under  authority  of 
statute  and  under  the  direction  of  the  court,  has  as- 

agreement  or  process  before  the  appointment  of  a  receiver,  the  lienor 
being  lawfully  in  possession,  must  be  preserved  with  the  right  of 
enforcement,  unless  courts  and  legislatures  are  to  override  the  vested 
rights  of  creditors."  See,  also,  In  re  North  American  Gutta  Percha 
Co.,  17  How.  Pr.  549,  9  Abb.  Pr.  79;  Lowenberg  v.  Jefferies,  74  Fed. 
385  (the  proceeds  should  be  paid  in  the  order  of  priority);  Von 
Roun  V.  Superior  Court,  58  Cal.  358;  Smith  v.  Sioux  City  Nursery  etc. 
Co.,  109  Iowa,  51,  79  N.  W.  457;  Battery  Park  Bank  v.  Western  Caro- 
lina Bank,  127  N.  C,  432,  37  S.  E.  461;  Hays  v.  Lycoming  Fire  Ins.  Co^ 
99  Pa.  St.  621.     See,  post,  chapter  IX,  as  to  "Preferred  Claims." 

5  Quoted  in  Garden  City  Banking  &  Trust  Co.  v.  Geilfuss,  86  Wis. 
612,  57  N.  W.  349,  from  Ellis  v.  Vernon  Ice,  Light  &  Water  Co., 
86  Tex.  Sup.  109,  23  S.  W.  858.  See,  also.  Page  v.  Supreme  Lodge,. 
Knights  &  Ladies  of  Protection,  161  Mass.  384,  37  N.  E.  369. 

6  American  Trust  &  Sav.  Bank  v.  McGettigan,  152  Ind.  582,  71 
Am.  St.  Rep.  345,  52  N.  E.  793.  A  receiver  cannot  claim  rents  against 
an  assignee  thereof  under  an  assignment  to  secure  payment  of  claim: 
Brownson  v.  Roy,  133  Mich.  617,  95  N.  W.  710. 

7  McRae  v.  Bowers  Dredging  Co.,  86  Fed.  344,  states:  "Where  a 
court  of  equity  takes  control  and  custody  of  the  assets  of  an  insolvent 
corporation,  it  does  not  assume  to  destroy  existing  liens,  or  to  divest 
the  rights  of  lien  creditors.  The  court  assumes  the  burden  of  pro- 
tecting as  far  as  may  be  the  rights  of  all  parties  having  interests. 
Therefore,  it  will  not  surrender  property  in  its  custody,  to  be  disposed 
of  by  process  under  other  courts,  but  will,  when  necessary  to  enable 
ereditors  to  collect  their  dues,  order  a  sale  of  the  assets,  and  distribute 
the  funds  according  to  the  rights  and  priorities  of  the  owners  and 
ereditors":  Risk  v.  Kansas  T.  &  Bkg.  Co.,  58  Fed.  45;  Talledega 
Mercantile  Co.  v.  Jenifer  Iron  Co.,  102  Ala.  259,  14  South.  743  (hold- 
ing that  the  court  may  grant  leave  to  the  creditor  to  proceed  directly 
against  the  receiver). 


289  THE  RECEIVEE'S  POSSESSION.  fi  156 

sumed  the  possession  of  all  the  personal  property  of 
the  insolvent  corporation,  this  court  is  bound  to  give 
effect  to  liens  which  existed  as  liens  on  the  property 
when  its  receiver  took  possession."^ 

The  right  of  the  lienor  to  protection  would  seem  to 
be  assured  from  the  fact  that  "the  receiver  is  the  hand 
of  the  law,  and  the  law  conserves  and  enforces  rights — 
never  destroys  them."^  And  it  is  not  necessary  that 
the  lien  be  created  in  any  particular  manner,  so  long  as 
there  has  been  a  valid  right  established  in  favor  of  the 
lienor.  Thus,  the  filing  of  a  creditor's  bill  has  been 
held  to  create  a  sufficient  lien.^*^  In  the  case  of  an  at- 
tachment made  before  the  application  for  the  appoint- 
ment of  a  receiver,  the  court  of  Massachusetts  said: 
"We  are  satisfied  that  under  the  laws  of  Massachusetts 
an  attachment  is  a  lien  or  encumbrance  upon  the  prop- 
erty attached.  It  fastens  itself  upon  the  property,  and 
whoever  takes  the  property  takes  it  cum  onere,  .... 
and,  though  the  assets  pass  into  the  hands  of  receivers, 
they  take  with  all  the  liens  thereon,  and  an  existing  at- 

8  Duryee  v.  United  States  Credit  System  Co.,  55  N.  J.  Eq.  311,  37 
Atl.  155;  the  court  cited  Doane  v,  Millville  Ins.  Co.,  45  N.  J.  Eq. 
274,  282,  17  Atl.  625,  and  continued:  "And  effect  is  generally  given 
to  such  statutory  liens,  in  practice,  either  by  providing  for  their 
payment  by  the  receiver  as  preferred  claims,  or  by  allowing  the 
claimant,  on  application  to  the  court,  to  enforce  his  lien  in  the 
courts,  and  by  the  proceedings  in  which  they  would  clearly  be  en- 
forceable had  no  receiver  been  appointed,   and  making  the  receiver 

a  party  to  such  further  proceedings,  where  this  is  necessary 

And  where  the  property  is  in  the  control  of  the  officer  of  the  court, 
expressly  subject  to  the  lien,  the  fact  that  the  lien  cannot  be  other- 
wise made  effective  than  by  the  action  of  this  court  is  no  sufficient 
reason,  as  it  seems  to  me,  for  holding  that  it  is  not  valid." 

9  Von  Eoun  v.  Superior  Court,  58  Cal.  358. 

10  King  V.  Goodwin,  130  111,  102,  17  Am.  St.  Eep.  277,  22  N.  E. 
533.  But  see  Battery  Park  Bank  v.  Western  Carolina  Bank,  127  N. 
C.  432,  37  S.  E.  461,  stating  it  does  not  extend  to  "tangible  personal 
property";  Davenport  v.  Kelly,  42  N.  Y.  193. 

Equitable  Eemedies,  Vol.  1—19 


J  156  EQUITABLE  EEMEDIES.  290 

tacliment  is  a  lieii."^^  And  where,  after  the  acquire- 
ment of  a  judgment  lien,  a  receiver  was  appointed  at 
the  suit  of  creditors,  tlie  judgment  creditor  was  allowed 
to  enforce  his  lien  against  the  receiver,  although  he 
might  have  intervened  in  the  suit  in  which  the  receiver 
was  appointed.^ 2 

It  is  held  that  where  a  sheriff  makes  a  levy  under  an 
execution  before  the  appointment  of  a  receiver,  the  re- 
ceiver takes  the  property  subject  to  the  lien  thus  cre- 
ated.^^  It  is  said:  "If  the  sheriff  had  made  a  levy  on 
the  property  which  subsequently  came  into  the  hands 
of  the  receiver,  it  is  for  him  to  enforce  that  levy.  He 
is  entitled  to  collect  the  money  and  apply  it  on  the  exe- 
cution if  the  levy  was  made.     It  is  his  duty  to  do  so."^* 

11  Hubbard  v.  Hamilton  Bank,  7  Met.  340;  quoted  with  approval  in 
Arnold  v.  Weimer,  40  Neb.  216,  58  N.  W.  709.  See,  also,  Kittridge 
V.  Osgood,  161  Mass.  384,  reported  snb  nom.  Page  v.  Supreme  Lodge, 
37  N.  E.  369;  Lowenberg  v.  Jefferies,  74  Fed.  385;  Koseboom  v.  Whit- 
taker,  132  HI.  81,  23  N.  E.  339;  Eunner  v.  Scott,  150  Ind,  441,  50 
N.  E.  479  (partnership  receiver) ;  Smith  v.  Sioux  City  Nursery  etc. 
Co.,  109  Iowa,  51,  79  N.  W.  457;  Minchin  v.  Second  Nat.  Bank,  36 
N.  J.  Eq.  436;  Hays  v.  Lycoming  F.  Ins.  Co.,  99  Pa.  St.  621  (garnish- 
ment); Von  Eoun  v.  Superior  Ct.,  58  Cal.  358  (a  lien  on  personal  prop- 
erty, which  ordinarily  depends  on  the  retention  of  possession  is  not 
destroyed  by  the  receiver's  taking  possession). 

12  Talladega  Mercantile  Co.  v.  Jenifer  Iron  Co.,  102  Ala.  259,  14 
South.  743.  See,  also,  Gere  v.  Dibble,  17  How.  Pr.  31;  Battery  Park 
Bank  v.  Western  Carolina  Bank,  127  N.  C.  432,  37  S.  E.  461.  But 
see  Doane  v.  Millville,  M.,  M.  &  F.  Ins.  Co.,  45  N.  J.  Eq.  274,  17  Atl. 
625,  stating,  "the  mere  fact  that  the  debt  has  been  put  into  a  judg- 
ment will  not  secure  any  preference  to  the  creditor."  Approved  in 
Van  Steenburgh  v.  Porsie  Button  Co.  (N.  J.),  34  Atl.  135,  holding  that 
the  delivery  of  an  execution  to  the  sheriff  did  constitute  a  lien,  though 
he  had  made  no  levy. 

13  Van  Alstyne  v.  Cook,  25  N,  Y.  489;  Becker  v.  Torrance,  31  N. 
Y.  631;  Davenport  v.  Kelly,  42  N.  Y.  193  (a  levy  on  personalty  is 
not  defeated  by  another  creditor's  filing  a  "creditor's  bill");  In  re 
Pond,  21  Misc.  Eep.  114,  46  N.  Y.  Supp.  999. 

14  In  re  North  American  Gutta  Percha  Co.,  17  How.  Pr.  549,  9  Abb. 
Pr.  79  ("if  the  officer  of  this  court  has  taken  possession  of  the  prop- 
erty thus  levied  on,  and  sold  the  same,  he  is  bound  to  account  to  the 


291  THE  RECEIVER'S  POSSESSION.  §  155 

It  is  well  settled  that  an  existing  lien  of  a  state  or 
municipality  for  the  payment  of  taxes  is  neither  lost 
nor  impaired  by  the  transfer  of  the  property  to  the  pos- 
session of  a  receiver ;  "he  but  takes  the  property  for  the 
benefit  of  all  lienholders  and  creditors."^  ^  And  Avhile 
a  landlord  cannot  exercise  the  right  of  distraint  for 
rent,  because  of  the  manual  possession  of  the  goods  by 
the  court's  appointee,  he  necessarily  has  a  lien  for  the 
payment  which  attaches  to  the  fund  raised  by  the  sale 
which  the  court  ordered.^^  So  a  mechanic's  lien  cannot 
be  impaired  by  the  subsequent  appointment  of  a  re- 
ceiver.^'^  As  the  receiver  takes  the  property  subject  to 
all  equities  good  against  the  one  from  whom  he  takes, 
he  is  bound  by  an  existing  chattel  mortgage  or  condi- 
tional sale,^®  It  is  said  a  receiver  "is  trustee  for  the 
whole  body  of  general  creditors,  and  takes  the  prop- 
erty subject,  not  only  to  all  legal  liens,  but  to  all  equita- 
ble liens  as  well"  j^*^  he  is  "affected  with  all  claims,  liens 

sheriff  for  the  proceeds");  and  cases  cited,  supra,  in  note  13;  In  re 
Muehlfeld  &  Haynes  Piano  Co.,  12  App.  Div.  492,  42  N.  Y.  Supp.  802, 
26  Civ.  Pr.  Rep.  90  (an  execution  on  a  judgment  where  the  action  was 
commenced  before  the  appointment  of  a  receiver,  is  superior  to  the 
receiver's  right). 

15  Union  Trust  Co.  v.  Weber,  96  111.  346  ("we  are  wholly  at  a  loss 
to  see  any  reason  for  holding  that  the  lien  of  the  state  or  municipal- 
ities for  taxes  should  be  lost  or  defeated We  apprehend,  no 

one  will  or  can  contend  that  when  the  state  or  municipalities  have  a 

lien  on  property  for  taxes,  it  is  not  paramount  to  all  other  liens 

The  receiver  is  not  a  purchaser,  but  he  receives  the  possession  and 
title,  when  transferred  to  him,  to  hold  for  all  parties  in  interest"). 
See,  also,  Duryee  v.  United  States  Credit  System  Co.,  55  N.  J.  Eq. 
311,  37  Atl.  155. 

16  Lane  v.  Washington  Hotel  Co.,  190  Pa.  St.  230,  42  Atl.  697.  See 
Woodward  v.  Winehill,  14  Wash.  394,  44  Pac.  860,  holding  that  notice 
to  quit,  served  on  a  tenant,  is  binding  on  a  subsequently  appointed  re- 
ceiver. 

17  Totten  &  Hogg  I.  &  S,  F.  Co.  v.  Muncie  Nail  Co.,  148  Ind.  372, 
47  N.  E.  703. 

18  Bates  v.  Wiggin,  37  Kan.  44,  1  Am.  St.  Eep.  234,  14  Pac.  442. 

19  Miller  v.  Savage,  60  N.  J.  Eq.  204,  46  Atl.  632;  In  re  Olzendam 


5  157  EQUITABLE  EEMEDIES.  292 

and  equities  which  would  affect  the  debtor  if  he  himself 
were  asserting  his  interest  in  the  property."^"  And  a 
receiver  can  therefore  obtain  no  title  to  property  where 
the  original  vendor  reserved  his  title  by  a  clause  in  the 
bill  of  sale  of  the  chattels;-^  neither  can  he  supersede  a 
prior  valid  assignments^ 

§  157.  Same;  Receiver's  Right  to  Possession  as  Against 
Prior  Lienor. — The  question  of  the  prior  lienholder's  right 
to  enforce  his  lien  by  process  is  one  on  which  the  cases 
are  far  from  uniform;  this  question  is  discussed  else- 
where.s^  A  number  of  decisions  have  been  rendered  on 
the  analogous  subject  of  the  receiver's  right  to  posses- 
sion, as  against  the  holder  of  a  prior  lien,  when  such 
lien  carries  with  it  the  possession  of  the  property.  It 
is  held  that  the  receiver  cannot  replevy  goods  upon 
which  execution  has  been  levied  prior  to  the  appoint- 
ment, when  the  defendant's  superior  right  is  so  clear 
that  the  court  of  chancery  would  not  have  ordered  the 
property  to  be  delivered  to  the  receiver  ;-^  that  personal 
property,  possession  of  which  had  been  taken  by  the 
sheriff  under  attachment  from  a  state  court,  cannot 
rightfully  be  interfered  with  by  a  federal  receiver  while 
such  possession  continues,  while  a  prior  attachment  of 

Co.,  117  Fed.  179  (subject  to  equitable  lien).  See,  also,  as  pertaining 
to  partnership  receivers,  Hoifman  v.  Schoyer,  143  111.  598,  28  N.  E. 
823;  Chicago  Title  &  Trust  Co.  v.  Smith,  158  111.  417,  425,  41  N.  E. 
1076. 

20  Eyder  v.  Eyder,  19  K.  I.  188,  32  Atl.  919  (subject  to  mortgagee's 
equity   to   have   a  mortgage   reformed). 

21  Sayles  v.  Nat.  Water  Purifying  Co.,  16  N.  Y.  Supp.  555,  62 
Hun,  618. 

22  Garden  City  Bank  etc.  Co.  v.  Geilfuss,  86  "Wis.  612,  57  N.  W. 
349;  Chicago  Title  &  Trust  Co.  v.  Smith,  158  HI.  417,  425,  41  N.  E. 
1076;  Brownson  v.  Eoy,  133  Mich.  617,  95  N.  W.  710  (assignment  of 
lents). 

23  See  post,  §§  166,  167. 

24  Conley  v.  Deere,  11  Lea   (Tenn.),  274,  279. 


293  THE  KECEIVER'S  POSSESSION.  §  15S 

real  property,  not  conferring  possession,  actual  or  con- 
structive, does  not  preclude  a  lawful  seizure  of  such 
property  by  a  federal  receiver;-^  that  when  personal 
property  is  in  the  custody  of  a  sheriff  under  a  writ  of 
attachment,  a  court  of  chancery  cannot  acquire  juris- 
diction of  the  same  property,  so  as  to  take  it  from  the 
possession  of  the  sheriff  into  the  custody  of  its  re- 
ceiver.2^  The  subject  has  received  much  attention 
from  the  supreme  court  of  Washington,  which  holds 
that  when  creditors  of  a  corporation  have  attached  its 
property,  and  maintained  their  lien  by  the  actual  pos- 
session of  the  sheriff,  a  receiver  appointed  in  a  suit  by 
a  stockholder,  to  which  the  attachment  creditors  were 
not  parties,  has  no  right  of  possession  of  the  attached 
property,  but  the  sheriff  must  keep  and  dispose  of  it 
under  his  writ.^'^  On  the  other  hand,  it  is  held  in  Wis- 
consin that  proceeds  of  an  execution  sale  in  the  hands 
of  the  sheriff,  though  in  law  the  creditor's,  may  be  se- 
questered, on  motion  of  the  other  creditors  of  the  debtor 
corporation,  into  the  hands  of  a  subsequently  appointed 
receiver,  on  an  ex  parte  showing  that  the  confessed 
judgments  on  which  the  executions  were  issued  were  in- 
tended as  a  fraudulent  and  illegal  preference.^^ 

§  158.    Receiver's  Title  Vests  from  Order  of  Appointment. 
The  general  rule  is  well  established  that  the  title  and 

25  In  re  Hall  &  Stilson  Co.,  73  Fed.  527,  citing  many  cases. 

26  Ford  V.  Judsonia  Mercantile  Co.,  52  Ark.  426,  20  Am.  St.  Eep. 
192,  12  S.  W.  876,  6  L,  E.  A.  714;  Pease  v.  Smith,  63  111.  App.  411. 

27  State  V.  Superior  Court  of  Chehalis  County,  8  "Wash.  210,  35  Pac. 
1087,  25  L.  R.  A.  354,  38  Cent.  L.  J.  341  (but  see  the  strong 
dissenting  opinion  of  Dunbar,  C.  J.);  State  v.  Superior  Court  of  Sno- 
homish County,  7  Wash,  77,  34  Pac.  430;  State  v.  Graham,  9  Wash. 
528,  36  Pac.  1085;  but  the  doctrine  of  these  cases  seems  to  be  mate- 
rially limited  by  the  later  case  of  State  v.  Superior  Court  of  King 
County,  11  Wash.  63,  39  Pac.  244, 

28  Ford  V.  Plankinton  Bank,  87  Wis.  363,  58  N.  W.  766. 


5  158  EQUITABLE  REMEDIES.  294 

right  of  a  receiver  relate  to  tlie  time  of  the  order  ap- 
pointing him.  It  is  said:  "The  appointment  of  a  re- 
ceiver is  completed  at  the  farthest  by  the  filing  and  en- 
tering of  the  order  appointing  him,  although  before  he 
proceeds  to  the  discharge  of  his  duties  he  may  be  di- 
rected to  execute  and  file  a  proper  bond.  When  that 
is  done,  he  can  take  actual  manual  possession  of  the 
property,  and  his  title  relates  back  to  the  time  of  his  ap- 
pointment."^^ Accordingly,  a  levy  by  an  officer,  after 
appointment  and  before  the  receiver  has  filed  his  bond, 
will  create  no  lien,^*^  and  may  be  enjoined  f^  and  a  valid 
judgment,  obtained  under  these  circumstances,  affords 
no  ground  for  seizing  the  property  on  execution,  or 
creating  a  lien.^^     A  federal  court  has  said :  "If  the  ju- 

29  In  re  Schuyler  Steam  Towboat  Co.,  136  N.  Y.  169,  32  N.  E.  623, 
20  L.  E,  A.  391.  See,  also,  In  re  Christian  Jensen  Co.,  128  N.  Y.  550, 
28  N.  E.  665  ("the  moment  he  was  appointed  he  became  an  officer  of 
the  court,  and  from  that  time  the  property  of  the  corporation  was 
in  ciistodia  legis,  and  the  court  had  the  power  to  preserve  and  protect 
it.  While  the  receiver  could  not  interfere  with  the  property  of  the 
corporation  until  he  filed  his  bond,  yet  after  he  filed  his  bond  his  title 
related  back  to  the  date  of  his  appointment,"  and  the  property,  there- 
fore, was  not  subject  to  replevin) ;  In  re  Lenox  Corporation,  57  App. 
Div.  515,  68  N.  Y.  Supp.  103;  In  re  Muehlfeld  &  Haynes  Piano  Co., 
12  App.  Div.  492,  42  N.  Y.  Supp.  802,  26  Civ.  Pr.  Eep.  90;  Dickey  v. 
Bates,  13  Misc.  Eep.  489,  35  N.  Y.  Supp.  525;  Van  Alstyne  v.  Cook, 
25  N.  Y.  489;  Steele  v.  Sturges,  5  Abb.  Pr.  442;  Eutter  v.  Tallis,  5 
Sandf.  610;  Mosher  v.  Supreme  Sitting  of  O.  T.  H.,  88  Hun,  394,  34 
N.  Y.  Supp.  816;  Maynard  v.  Bond,  67  Mo.  315;  Pope  v.  Ames,  20 
Or.  199,  25  Pac.  393;  Fogg  v.  Providence  Lumber  Co.,  15  E.  I.  15,  23 
Atl.  31;  Clinkscales  v.  Pendleton  Mfg.  Co.,  9  S.  C.  318;  Eegenstein 
V.  Pearlstein,  30  S.  C.  192,  8  S.  E.  850;  Battery  Park  Bank  v.  Western 
Carolina  Bank,  127  N.  C.  432,  37  S.  E.  461. 

30  Ex  parte  Evans,  L.  E.  13  Ch.  D.  252;  In  re  Lenox  Corporation, 
57  App.  Div.  515,  68  N.  Y.  Supp.  103;  Atlas  Bank  v.  Nahant  Bank, 
23  Pick.  480  (the  title  relates  to  the  filing  of  the  bill  "or  at  least  to 
the  injunction,"  issued  to  prevent  the  transfer  of  property). 

31  In  re  Schuyler  Steam  Towboat  Co.,  136  N.  Y.  169,  32  N.  E.  623, 
20  L.  E.  A.  391. 

32  Connecticut  Eiver  Banking  Co.  v.  Eockbridge  Co.,  73  Fed.  709; 
Temple  v.  Glasgow,  80  Fed.  441,  42  U.  S.  App.  417,  25  C.  C.  A.  540. 


295  THE  EECEIVER'S  POSSESSION.  §  158 

risdiction  of  the  court  over  the  property  did  not  attach 
contemporaneously  with  the  order  appointing  a  re- 
ceiver, the  purpose  of  the  court  in  appointing  a  receiver 
might  be  defeated  by  the  failure  of  the  person  appointed 
receiver  to  accept  the  position,  or  his  inability  to  give 
the  bond  required,  or,  in  the  interim  between  the  order 
appointing  a  receiver  and  his  giving  the  required  bond, 
a  creditor  might  obtain  an  advantage  by  securing  a 
confession  of  judgment,  and  in  innumerable  other 
ways."^^ 

It  is  sometimes  stated  that  the  title,  upon  proper 
bond  being  given,  relates  to  the  date  of  the  filing  of  the 
bill ;  that  "the  filing  of  the  bill  and  service  of  process  is 
an  equitable  levy  on  the  property,  and  pending  the  pro- 
ceedings such  property  may  properly  be  held  to  be  in 

gremio  legis In  such  cases  the  commencement  of 

the  suit  is  sufficient  to  give  the  court  whose  jurisdiction 
is  invoked  the  exclusive  right  to  control  the  prop- 
erty."^*     In   ordinary  cases,  however,   the  rule  is   as 

See,  also,  Battery  Park  Bank  v.  Western  Carolina  Bank,  127  N.  C. 
432,  37  S.  E.  461. 

33  Connecticut  River  Banking  Co.  v.  Rockbridge  Co.,  73  Fed.  709; 
affirmed  in  Temple  v.  Glasgow,  80  Fed.  441,  42  XJ.  S.  App.  417,  25 
C.  C.  A.  540,  stating:  "Generally  the  better  rule  would  seem  to  be 
that,  when  the  court  has  jurisdiction,  the  order  appointing  a  general 
receiver  for  the  purpose  of  liquidation  is  an  adjudication  which  oper- 
ates as  a  sequestration  of  the  property  of  the  corporation,  ....  and 
in  such  cases  to  hold  that  the  rights  of  parties  are  affected  by  the 
accident  of  whether  the  receiver  is  able  on  the  instant  to  proffer  his 
bond  for  approval  is  illogical." 

34  Illinois  Steel  Co.  v.  Putnam,  68  Fed.  515,  15  C.  C.  A.  556,  citing 
Adams  v.  Trust  Co.,  66  Fed.  617,  15  C.  C.  A.  1,  and  supporting,  as  not 
within  the  principle  stated,  a  transfer  of  stock  made  pending  a  mo- 
tion for  the  appointment  of  a  receiver:  Merrill  v.  Commonwealth 
Mut.  Fire  Ins.  Co.,  166  Mass.  238,  44  N.  E.  144.  In  Texas  the  rule 
appears  to  be  that  the  title,  as  against  attachments,  relates  back 
to  the  time  when  the  appointing  court  took  jurisdiction  of  the 
application,  "by  acting  upon  it  in  such  a  manner  as  to  indicate  that 
he   had   determined  to   investigate  the   matter   and   might   at   some 


§  159  EQUITABLE  REMEDIES.  29G 

stated  above.^^  The  supreme  court  of  Iowa  lias  said: 
"It  is  very  plain  that  the  commencement  of  the  proceed- 
ings for  the  appointment  of  the  receiver  did  not  subject 
the  property  of  the  gas  company  to  the  custody  of  the 
law  and  bring  it  under  the  authority  of  the  receiver."^^ 

§  159.  Contra;  Title  Dates  from  Qualification,  or  from 
the  Time  When  He  Takes  Actual  Possession. — The  general 
rule  has  been  expressly  departed  from  in  California  in 
the  case  of  a  receiver  of  mortgaged  realty  ;^'^  and  in 
Maryland,  actual  possession  by  the  receiver  is  de- 
manded before  the  property  is  considered  under  the 
control  of  the  court.  It  is  said:  "Their  mere  appoint- 
ment did  not,  as  we  think,  place  the  property,  as  against 

future  date  appoint  a  receiver":  Worden  v.  Pruter  (Tex.  Civ.  App.), 
88  S.  W.  434;  Eissner  v.  Railway  Co.,  89  Tex.  656,  59  Am.  St.  Eep. 
84,  36  S.  W.  53,  33  L.  E.  A.  171. 

35  In  re  Muehlfeld  &  Haynes  Piano  Co.,  12  App.  Div.  492,  42  N.  Y. 
Supp.  802,  26  Civ.  Pr.  Eep.  90;  and  cases  cited  above.  In  Smith  v. 
Sioux  City  Nursery  &  Seed  Co.,  109  Iowa,  51,  79  N.  W.  457,  the  court 
says:  ''The  fact  that  the  proceedings  were  begun  for  the  appoint- 
ment of  a  receiver  did  not  suspend  the  right  of  creditors  to  attach, 
nor  that  of  the  company  to  assign  its  accounts  as  security  for  the 
payment  of  its  debts,  if  in  doing  so  it  acted  in  good  faith.  While 
there  is  some  conflict  in  the  authorities  as  to  whether  property  of  the 
debtor  passes  in  custodia  legis  at  the  time  the  receiver  is  appointed, 
or  when  he  assumes  possession,  all  agree  that  the  jus  disponendi  is 
not  affected  by  the  application,  and  continues,  at  least,  till  the  mak- 
ing of  the  order  or  appointment."  See,  also,  Cook  v.  Cole,  55  Iowa, 
72,  7  N.  W.  419;  Van  Alstyne  v.  Cook,  25  N.  Y.  489. 

36  Cook  V.  Cole,  55  Iowa,  72,  7  N.  W.  419. 

37  Bank  of  Woodland  v.  Heron,  120  Cal.  614,  52  Pac.  1006  (the 
court  states:  "There  are,  no  doubt,  authorities — and  perhaps  a 
weight  of  authorities,  although  there  are  cases  the  other  way — to  the 
point  that  the  appointment  of  a  receiver  operates  as  a  sequestration 
of  the  property  mentioned  in  the  order  of  appointment.  Still  it  will 
be  found  that  the  cases  in  which  that  principle  was  declared  are 
mainly  cases  in  which  complainants  at  whose  instance  the  receivers 
were  appointed  had  some  estate  in  or  some  right  to  or  lien  upon  the 
property  involved  prior  to  and  independent  of  the  appointment  of 
the   receiver"). 


297  THE  RECEIVER'S  POSSESSION.  §  159 

a  stranger  to  the  proceedings,  in  possession,  and  claim- 
ing the  right  to  retain  and  sell  it,  in  custodia  legis. 
Actual  possession  was  necessary  to  accomplish  this. 
The  authorities  speak  of  the  appointment  mid  posses- 
sion by  the  receivers  as  necessary  in  order  to  place  the 
property  in  the  custody  of  the  court."^^  This  is  true 
even  though  the  receiver  has  given  his  bond.^^  In  New 
York,  it  has  been  held  that  as  the  vesting  of  title  by  re- 
lation is  only  a  legal  fiction,  such  fiction  will  not  be 
indulged  in  to  permit  a  wrong  against  the  creditor, 
when  the  debtor  has,  by  "frivolous  pleading,"  prevented 
the  creditor  from  obtaining  a  prior  lien.^°  In  Vir- 
ginia an  execution  levied  after  the  appointment,  and 
before  the  giving  of  the  bond,  is  held  to  create  a  valid 
lien.*^  The  court,  in  the  case  mentioned,  relied  prin- 
cipally upon  the  English  case  of  Edwards  v.  Edwards,^^ 
which  may  be  taken  to  represent  the  English  rule,  which 
is  contrary  to  the  general  rule  in  the  United  States.^^ 

38  Everett  v.  Neff,  28  Md.  176, 

39  Farmers'  Bank  v.  Beaston,  7  Gill  &  J.  421,  28  Am,  Dec,  226. 
See,  also,  Prentiss  Tool  &  Supply  Co.  v.  Whitman  &  Barnes  Mfg,  Co., 
88  Md,  240,  41  Atl,  49,  where  the  time  of  vesting  is  regulated  by 
statute. 

40  In  re  Lewis  &  Fowler  Mfg.  Co.,  89  Hun,  208,  34  N.  Y,  Supp. 
983,  See,  also,  Chamberlain  v,  Rochester  S,  P.  V,  Co.,  7  Hun,  557, 
where  the  title  of  a  receiver  in  the  case  of  voluntary  dissolution  of  a 
corporation  vests  on  the  filing  of  his  bond  only, 

41  Frayser  v,  Richmond  &  A,  R.  Co,,  81  Va,  388. 

42  L,  R.  2  Ch.  D.  291;  the  court  was  not  unanimous  in  their  reason- 
ing, James,  L.  J.,  stating:  "It  would  be  very  serious  to  hold  that 
he  can  take  possession  before  giving  security,"  and  Mellish,  L.  J., 
maintaining  that  "if  the  receiver  had  really  taken  possession  before 
the  goods  were  seized,  although  he  had  not  been  completely  appointed 
receiver,"  the  case  would  have  been  different. 

43  The  English  cases,  apparently  inconsistent  with  Edwards  v.  Ed- 
wards, cannot  be  said  to  impair  its  weight  as  authority  on  the  point 
decided;  thus,  in  Ex  parte  Evans,  L.  R.  13  Ch.  D.  252,  the  court  said: 
"Edwards  v.  Edwards  only  decided  it  was  no  contempt  for  creditors 
to  seize  property  before  the  bond  was  given  and  the  case  related  to 


§  160  EQUITABLE  REMEDIES.  29S 

A  later  Virginia  case  held  that  a  payment  made  to  a 
receiver,  who  had  not  given  bond,  was  at  the  peril  of 
the  payor,  and  where  the  receiver  failed  to  account,  the 
purchaser  was  bound  to  pay  again,  as  the  receiver's 
authority  dated  only  from  his  giving  bond.^* 

§  160.  Vesting  of  Title  in  Supplementary  Proceed- 
ings.— The  statutes  in  regard  to  the  appointment  of  re- 
ceivers in  supplemental  proceedings  and  the  time  when 
the  title  to  the  property,  in  such  cases,  vests  in  the  re- 
ceiver, are  not  harmonious.  In  New  Jersey,  the  title 
relates  to  the  issuing  of  the  execution,  as  against  an 
assignee  with  notice  of  the  proceedings.'*^  In  New 
York,  the  code  provides  that  the  title  is  vested  in  the 
receiver  from  the  time  he  files  a  certified  copy  of  the 

chattels,  not  land."  In  regard  to  land,  the  court  had  the  following 
to  say:  "A  judgment  creditor,  not  being  able  to  obtain  relief  at  law 
under  the  old  system,  because  his  debtor  had  nothing  but  an  equitable 
interest  in  the  land,  came  iuto  a  court  of  equity  to  obtain  that  relief 
which  he  could  not  obtain  at  law,  and  the  moment  he  established  the 
difficulty  in  his  way  at  law,  and  the  court  made  the  order  giving  the 
right  to  the  possession  of  the  lands  to  the  receiver  appointed  on  Ms 
behalf,  that  order  giving  the  right  to  possession  to  the  creditor  through 
the  receiver  was  as  much  a  delivery  in  execution  of  land  in  which  the 
debtor  had  only  an  equitable  interest,  as  was  the  sheriff's  return  to 
the  writ  of  elegit  at  law,  that  he  had  extended  the  land,  a  delivery 
in  execution  of  the  land  in  which  the  debtor  had  a  legal  interest." 
The  case  of  In  re  Bird,  L.  E.  22  Ch.  D.  604,  approving  Wickens  v. 
Townshend,  1  Euss,  &  M.  361,  refused  to  allow  a  solicitor  to  retain, 
on  a  debt  due  him,  money  paid  before  the  receiver's  bond  was  given; 
but  the  express  ground  on  which  the  case  was  put  was  the  inequita- 
ble position  of  the  solicitor  who  occupied  a  confidential  relation  to 
the  case,  and  it  cannot  be  said  that  it  is  opposed  to  Edwards  v.  Ed- 
wards. See,  also,  the  recent  case,  Eidout  v.  Fowler,  [1904]  1  Ch. 
658  (receiver  has  no  "title"  to  personalty  until  he  has  given  bond). 

44  Woods  V.  Ellis,  85  Va.  471,  7  S.  E.  852  (the  case  seems  open  to 
some  question,  for  apparently  the  receiver  afterwards  qualified  by 
giving  the  required  bond). 

45  Coleman  v.  Eoff,  16  Vroom,  17,  45  N.  J.  L.  7;  approved  in  Sey- 
fert  V.  Edison,  47  N.  J.  L.  428,  1  Atl.  502. 


299  THE  EECEIVEE'S  POSSESSION.  §  161 

order  of  his  appointment  in  the  county  where  the  debtor 
resides  ;^^  but  that,  as  respects  personal  property  and 
things  in  action,  it  may  relate  back,  for  the  benefit  of 
the  judgment  creditor  in  whose  behalf  the  proceedings 
were  instituted,  to  the  service  of  the  order  for  the  debt- 
or's examination.^^ 

§  161.  How  the  Receiver  may  Obtain  Possession  of  Property 
Withheld — Where  possession  is  withheld  from  the  re- 
ceiver by  persons  who  are  parties  to  the  suit,  or  by 
others  claiming  under  such  parties,  as  agents,  lessees, 
and  the  like,  with  notice  of  the  appointment  of  the  re- 
ceiver, the  court  has  authority  to  enforce  its  order  for 
the  surrender  of  the  property  in  a  summary  way  by  at- 
tachment or  by  a  writ  of  possession.^*  Thus,  it  has 
been  held  that  the  agents  or  officers  of  a  corporation 
or  firm,  a  receiver  of  which  has  been  appointed,  may  be 
ordered  to  deliver  up  property  belonging  to  their  prin- 

46  Nicoll  V.  Spowers,  105  N.  Y.  1,  11  N.  E.  138;  McCorkle  v.  Herr- 
man,  117  N.  Y.  297,  22  N.  E,  948;  Webb  v.  Osborne,  15  Daly,  406,  7 
N.  Y.  Supp.  762  (an  order  extending  the  receivership  is  governed  by 
the  same  rule). 

47  McCorkle  v.  Herrman,  117  N.  Y.  297,  22  N.  E.  948;  Youngs  v. 
Klunder,  27  N.  Y.  St.  Eep.  32,  7  N.  Y.  Supp.  498.  But  in  such  case 
the  debtor  must  have  been  served  with  notice  to  attend  the  examina- 
tion: In  re  Sistare's  Estate,  27  Abb.  N.  C.  34,  15  N.  Y.  Supp.  709. 

See,  also,  Eose  v.  Baker,  99  N.  C.  323,  5  S.  E.  919,  where  the  code 
provides  that  the  title  shall  vest  upon  an  order  restraining  the  debtor 
from  disposing  of  his  nonexempt  property. 

48  Thornton  v.  Washington  Savings  Bank,  76  Va.  432  (writ  of 
possession  against  lessee  taking  a  lease  from  a  party,  with  knowledge 
of  the  appointment  of  a  receiver);  Ex  parte  Cohen,  5  Cal.  494;  Brandt 
V.  Allen,  76  Iowa,  50,  40  N.  W.  82,  1  L.  E.  A.  653;  Eyan  v.  Kingsbery, 
88  Ga.  361,  14  S.  E.  596;  Delozier  v.  Bird,  123  N.  C.  689,  31  S.  E.  834, 
125  N.  C.  493,  34  S.  E.  643;  Tolleson  v.  Green,  83  Ga.  499,  10  S.  E. 
120;  and  see  Fischer  v.  Superior  Court,  98  Cal.  67,  32  Pac.  875; 
Miles  v.  New  South  Bldg.  &  L.  Assn.,  95  Fed.  919;  and  cases  cited 
in  the  next  note.  That  the  receiver  may  sometimes  attack  a  fraud-  • 
ulent  transfer  to  a  third  person,  by  petition  in  the  cause,  see  United 
States  V.  Late  Corporation  of  Church  etc.,  5  Utah,  538,  18  Pac.  35. 


g  161  EQUITABLE  REMEDIES.  300 

cipal,  although  they  themselves  are  not  parties  to  the 

49  Brandt  v.  Allen,  76  Iowa,  50,  40  N,  W.  82,  1  L.  E.  A.  653;  Ex 
parte  Cohen,  5  Cal.  494. 

In  Tolleson  v.  People's  Savings  Bank,  85  Ga.  171,  11  S.  E.  599,  the 
receiver  appointed  by  the  court  applied  for  an  order  requiring  the 
president  of  the  insolvent  corporation  to  show  cause  why  he  should 
not  be  attached  for  contempt,  in  not  delivering  the  assets  of  the  cor- 
poration to  such  receiver  in  obedience  to  a  previous  order  of  the 
court  directed  to  the  corporation.  The  president  appeared  as  an  in- 
dividual, and  responded  under  oath,  and  took  part  in  the  proceed- 
ings. It  was  held  that  the  court  had  such  jurisdiction  of  him  as 
would  authorize  it  to  deal  with  him  for  contempt  in  not  turning 
over  to  the  receiver  the  assets  of  the  corporation  in  his  possession. 
In  Ex  parte  Hollis,  59  Cal.  405,  on  the  other  hand,  it  was  held  that 
the  president  of  a  corporation  against  which  insolvency  proceedings 
were  instituted  did  not  become  a  party  by  verifying  the  pleadings; 
and  that  the  court  could  not,  by  a  mere  order  to  show  cause  why  he 
should  not  be  punished  for  contempt  for  not  surrendering  to  the 
receiver  property  of  the  corporation,  make  him  a  party  and  adjudge 
his  adverse  claim  to  the  property;  and  see  to  the  same  effect  State 
v.  Ball,  5  Wash.  387,  34  Am.  St.  Eep.  866,  31  Pac.  975. 

Refusal  of  a  party  to  the  action  to  obey  an  order  directing  him  to 
deliver  certain  property  of  the  corporation  to  the  receiver  constitutes 
a  contempt,  although  he  claims  a  lien  thereon:  Ex  parte  Tinsley,  37 
Tex.  Cr.  App.  517,  66  Am.  St.  Eep.  818,  40  S.  W.  306;  affirmed,  171 
U.  S.  101,  18  Sup.  Ct.  805.  Such  order  must  be  obeyed,  however 
erroneous  it  may  be,  if  the  court  had  jurisdiction:  Tolman  v.  Jones, 
114  111.  148,  28  N.  E.  464.  And  the  officers  need  not  be  expressly  re- 
quired by  the  order  appointing  the  receiver  to  deliver  the  assets  to 
him,  if  the  receiver  is  invested  "with  the  usual  rights  and  powers  of 
receivers"  and  specially  with  power  "to  receive  into  Ms  possession 
all  the  effects  and  chdses  in  action"  of  the  dissolved  corporation;  and 
a  sale  of  the  assets  by  the  officers  in  such  case  may  be  punished  as  a 
contempt:  Young  v.  Eollins,  90  N.  C.  125,  131.  See,  further,  American 
C.  Co.  V.  Jacksonville,  T.  &  K.  W.  E.  Co.,  52  Fed.  937. 

In  Cassilear  v.  Simons,  8  Paige  (N.  Y.),  273,  the  following  rule 
was  laid  down  by  Chancellor  Walworth:  "Where  it  is  referred  to  a 
master  to  appoint  a  receiver,  and  the  defendant  is  directed  to  as- 
sign and  deliver  over  his  property  on  oath,  under  the  direction  of 
the  master,  it  is  the  duty  of  the  party  who  wishes  to  have  an  actual 
delivery  of  the  property,  in  addition  to  the  legal  assignment  thereof, 
to  call  upon  the  master  to  decide  the  question  as  to  what  property  is 
under  the  defendant's  power  and   control,  and  to   obtain  from  the 


301  THE  EECEIVEE'S  POSSESSION.  §  162 

But  the  court  will  not  interfere  in  a  summary  way 
as  against  the  possession  of  a  stranger  to  the  action 
claiming  hj  a  paramount  title,  but  will  leave  the  ques- 
tion of  title  to  be  tried  by  a  proper  action  brought  by 
the  receiver  for  that  purpose;  or  the  complainant  may 
make  such  third  person  a  party  to  the  suit,  and  apply 
to  have  the  receivership  extended  to  the  property  in  his 
hands.^"  "The  party  in  possession,  who  asserts  in  good 
faith  color  and  claim  of  right,  is  entitled,  under  the 
guaranty  of  due  process  of  law,  to  his  day  in  court,  and 
a  trial  according  to  the  customary  forms  of  law."^^  If 
in  such  case  the  receiver  attempts  by  violence  to  obtain 
possession  of  property  claimed  by  third  x^ersons,  the 
court  will  not  protect  him  any  further  than  the  law 
will  protect  him,  but  will  permit  him  to  be  sued  as  a 
trespasser  by  the  party  aggrieved.^^ 

§  162.  Interference  with  Receiver's  Possession;  Claimant 
Must  Apply  to  the  Court.— Courts  of  equity  are  exceed- 

master  an  order  directing  tbe  defendant  to  deliver  over  the  property 
thus  designated  by  the  master,  before  the  complainant  can  bring  such 
defendant  into  contempt  for  disobeying  the  order  of  the  court." 
See,  also,  Parker  v.  Browning,  8  Paige,  388,  35  Am.  Dec.  717. 

50  Parker  v.  Browning,  8  Paige,  388,  35  Am.  Dec.  717;  Cassilear 
V.  Simons,  8  Paige,  273;  Wheaton  v.  Daily  Tel.  Co.,  59  C.  C.  A.  427, 
124  Fed.  61;  Musgrove  v.  Gray,  123  Ala.  376,  82  Am.  St.  Eep.  124, 
26  South.  643;  Havemeyer  v.  Superior  Court,  84  Cal.  327,  387,  18  Am. 
St.  Kep.  192,  24  Pac.  121,  10  L.  E.  A.  627;  Stuparich  Mfg.  Co.  v. 
Superior  Court,  123  Cal.  290,  55  Pac.  985;  McCombs  v.  Merry  hew,  40 
Mich.  721;  Elwell  v,  Goodnow,  71  Minn.  383,  73  N.  W.  1092,  1095; 
In  re  Muehlfeld,  16  App.  Div.  401,  45  N.  Y.  Supp.  16  (defendant  cor- 
poration's prior  assignee  for  the  benefit  of  creditors,  who  is  not  a 
party,  cannot  be  compelled  on  motion  to  surrender  to  the  receiver); 
Thornton  v.  Washington  Savings  Bank,  76  Va.  432;  Andrews  v. 
Paschen,  67  Wis.  413,  30  N.  W.  712.  But  see  United  States  v.  Late 
Corporation  of  Church  etc.,  5  Utah,  538,  18  Pac.  35. 

51  Musgrove  v.  Gray,  123  Ala.  376,  82  Am.  St.  Eep.  124,  26  South. 
643. 

52  Parker  v.  Browning,  8  Paige,  388,  35  Am.  Dec.  717. 


§•  162  EQUITABLE  EEMEDIES.  302 

inglj  averse  to  any  interference  with  the  possession  of 
their  receivers,  which  is  deemed  the  possession  of  the 
court.  They  jealously  and  vigilantly  guard  and  main- 
tain against  obstruction,  under  process  of  another 
court,  their  exclusive  authority  and  right  to  adjudicate 
upon  and  distribute  the  fund  in  their  custody  among 
those  entitled.^*  "The  court  never  allows  any  person 
to  interfere,  either  with  money  or  property  in  the  hands 
of  its  receiver,  without  its  leave;  whether  it  is  done  by 
the  consent  or  submission  of  the  receiver,  or  by  com- 
pulsory process  against  him.  The  court  is  obliged  to 
keep  a  strict  hand  over  property  in  the  hands  of  a  re- 
ceiver, or  which,  by  virtue  of  the  order  of  the  court, 
may  come  into  his  hands,  in  order  to  preserve  entire 
jurisdiction  over  the  whole  matter,  and  to  do  that 
which  is  just  in  the  cause  between  the  parties."^^ 
"When  a  party  is  prejudiced  by  having  a  receiver  put 
in  his  way,  the  course  has  either  been  to  give  him  leave 
to  bring  an  ejectment  [or  other  action],  or  to  permit 
him  to  be  examined  pro  interesse  siio,  which  may,  per- 
haps, often  be  the  most  convenient  mode."^^  Where 
property  or  funds  are  in  the  hands  of  a  receiver,  and 
claimed  by  persons  not  parties  to  the  action  in  which 
he  was  appointed,  a  petition  or  motion  may  be  presented 

53  Ex  parte  Tillman,  93  Ala.  101,  9  South.  527;  Angel  v.  Smith, 
9  Ves.  335;  Brooks  v.  Greathed,  1  Jacob  &  W.  178;  Evelyn  v.  Lewis, 
3  Hare,  472;  Eussell  v.  East  Anglian  Ry.,  3  Macn.  &  G.  104;.  Ex  parte 
Cochrane,  L.  R.  20  Eq.  282;  Wiswall  v.  Sampson,  14  How.  52,  65,  14 
L.  ed.  322;  In  re  Swan,  150  U.  S.  637,  14  Sup.  Ct.  225,  37  L.  ed.  1207; 
Moore  v.  Mercer  Wire  Co.  (N.  J.  Eq.),  15  Atl.  737;  Spinning  v. 
Ohio  L.  I.  &  T.  Co.,  2  Disn.  (Ohio)  336;  Vermont  &  C.  K.  Co.  v. 
Vermont  Central  E.  Co.,  46  Vt.  792. 

54  De  Winton  v.  Mayor  of  Brecon,  28  Beav.  200,  per  Lord  Eomilly, 
M.  R. 

55  Brooks  V.  Greathed,  1  Jacob  &  W.  176.  See,  also.  Ex  parte 
Cochrane,  L.  E.   20  Eq.  282;  Skinner  v.  Maxwell,  68  N.  C.  400. 


303  THE  KECEIVER'S  POSSESSION.  §  163 

to  the  court  for  an  order  on  the  receiver  to  deliver  over 
the  fund  or  property  to  the  claimant.^^ 

§  163.  Interference  with  Receiver  a  Contempt  of  Court. — 
It  is  well  settled  that  a  disturbance  of  the  receiver's 
possession  by  any  person,  whether  by  force,  or  by  legal 
proceedings  against  him,  or  in  any  other  manner,  with- 
out the  permission  of  the  court  by  whom  the  receiver 
was  appointed,  constitutes  a  contempt  of  that  court, 
since  the  possession  of  the  receiver  is  in  law  the  posses- 
sion of  the  court  itself.^"^     And  such  person  may  be 

56  Wheeler  v.  Walton  &  Wharn  Co.,  64  Fed,  664,  667,  affirmed 
Winchester  v,  Davis  Pyrites  Co.,  67  Fed.  45,  14  C.  C.  A.  300;  Kim- 
ball V.  GafPord,  78  Iowa,  65,  42  N.  W.  583,  4  L.  E.  A.  398;  Morrill 
V.  Noyes,  56  Me.  458,  96  Am.  Dec.  486;  Jacobson  v,  Landolt,  73  Wis. 
142,  9  Am.  St.  Eep.  767,  40  N.  W.  636. 

57  Skip  V.  Harwood,  3  Atk.  564;  Kussell  v.  East  Anglian  Ey.,  3 
Macn.  &  G.  104;  Helmore  v.  Smith,  35  Ch.  D.  449;  In  re  Swan,  150 
U.  S.  637,  14  Sup.  Ct.  225,  37  L,  ed.  1207;  Tinsley  v.  Anderson,  171 
IT.  S.  101,  18  Sup.  Ct.  805,  43  L.  ed.  91;  In  re  Doolittle,  23  Fed.  544, 
and  note;  United  States  v.  Kane,  23  Fed.  748;  In  re  Wabash  E.  Co., 
24  Fed.  217;  In  re  Higgins,  27  Fed.  443;  Beers  v.  Wabash  H.  L.  & 
P.  E.  Co.,  34  Fed.  244;  United  States  v.  Murphy,  44  Fed.  39;  Ameri- 
can C.  Co.  V.  Jacksonville,  T.  &  K.  W.  E.  Co.,  52  Fed.  937;  Thomas 
V.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.,  62  Fed.  803;  United  States  v. 
Jose,  63  Fed.  951;  In  re  Acker,  66  Fed.  290;  Ex  parte  Hollis,  59  Cal. 
405;  Tollison  v.  Green,  83  Ga.  499,  10  S.  E.  120;  Tolleson  v.  People's 
Sav.  Bank,  85  Ga,  171,  11  S.  E.  599;  Eyan  v.  Kingsberry,  88  Ga. 
361,  14  S.  E.  596;  Drakeford  v.  Adams,  98  Ga.  722,  25  S.  E.  833; 
Eichards  v.  People,  81  111.  551;  Tolman  v.  Jones,  114  111.  148,  28 
N.  E.  464;  Sercomb  v.  Catlin,  128  111.  556,  15  Am.  St.  Eep.  147,  21 
N.  E.  606;  In  re  Lewis,  52  Kan.  660,  35  Pac.  287;  Smith  v.  Hosmer, 
84  Mich.  564,  47  N,  W.  1092;  Moore  v.  Mercer  Wire  Co.  (N.  J.  Eq.), 
15  Atl.  305;  Noe  v.  Gibson,  7  Paige,  513;  Cassilear  v.  Simons,  8 
Paige,  273;  Hull  v,  Thomas,  3  Edw.  Ch.  236;  Delozier  v.  Bird,  123 
N.  C.  689,  31  S.  E.  834;  on  rehearing,  125  N.  C,  493,  34  S.  E.  643; 
Spinning  v.  Ohio  etc.  Tr.  Co.,  2  Disn.  (Ohio)  336;  Chafee  v.  Quidnick 
Co.,  13  E.  I.  442;  Edrington  v.  Pridham,  65  Tex.  612;  Ex  parte  Tins- 
ley,  37  Tex.  Cr.  App.  517,  66  Am.  St.  Eep,  818,  40  S.  W,  306;  Vermont 
etc.  E.  Co.  V.  Vermont  Cent.  E.  Co.,  46  Vt,  792;  State  v.  Ball,  5 
Wash.  387,  34  Am.  St.  Eep.  866,  31  Pac.  975.  As  to  the  degree  of 
proof   requisite   for   punishment   for   contempt,   see   United   States   v. 


}  163  EQUITABLE  EEMEDIES.  304 

chargeable  with  contempt  if  he  has  actual  knowledge 
of  the  granting  of  the  order  appointing  a  receiver,  al- 
though the  order  has  not  been  legally  served  upon  him, 
or  even  formally  drawn  up.^®  Further,  it  is  not  compe- 
tent for  anyone  to  interfere  with  the  possession  of  a 
receiver  on  the  ground  that  the  appointment  was  im- 
provident;^^ the  order  of  appointment  cannot  be  as- 
sailed as  erroneous  in  contempt  proceedings,  if  the 
court  had  jurisdiction  of  the  subject-matter  and  of  the 
parties  in  the  suit  in  which  the  receiver  was  ap- 
pointed.^^ 

Imprisonment  of  the  defendant  by  virtue  of  attach- 
ment proceedings,  for  disobedience  in  not  delivering  up 
a  specific  sum  of  money  found  and  adjudged  to  have 

Jose,  63  Fed.  951.  That  advice  of  counsel  constitutes  no  defense, 
see  Delozier  v.  Bird,  123  N.  C.  689,  31  S.  E.  834;  Edrington  v. 
Pridham,  65  Tex.  617.  As  to  punishment  for  contempt,  in  the  case 
of  rival  appointments,  of  the  receivers  whose  rights  are  inferior, 
see  People  v.  Central  City  Bank,  35  How.  Pr.  (N.  Y.)  428,  53  Barb. 
412;  Spinning  v.  Ohio  etc.  Tr.  Co.,  2  Disn.  336.  That  it  is  not 
proper,  in  contempt  proceedings,  to  render  a  judgment  in  favor  of 
the  receiver  to  be  collected  by  execution,  see  Edrington  v.  Pridham, 
65  Tex.  612. 

58  Skip  v.  Harwood,  3  Atk.  564;  Hull  v.  Thomas,  3  Edw.  Ch.  236; 
Drakeford  v.  Adams,  98  Ga.  722,  25  S.  E.  833. 

59  Kussell  V.  East  Anglian  Ey.,  3  Macn.  &  G.  104,  per  Lord  Truro: 
"The  result  appears  to  be  this:  that  it  is  an  established  rule  of 
this  court  that  it  is  not  open  to  any  party  to  question  the  orders 
of  this  court,  or  any  process  issued  under  the  authority  of  this  court, 
by  disobedience.  I  know  of  no  act  which  this  court  may  do  which 
may  not  be  questioned  in  a  proper  form  and  on  a  proper  application; 
but  I  am  of  opinion  that  it  is  not  competent  for  anyone  to  inter- 
fere with  the  possession  of  a  receiver,  or  to  disobey  an  injunction, 
or  any  other  order  of  the  court,  on  the  ground  that  such  orders  were 

improvidently  made I  do  not  see  how  the  court  can  expect  its 

officers  to  do  their  duty,  if  they  do  it  under  the  peril  of  resistance, 
and  of  that  resistance  being  justified  on  grounds  tending  to  the  im- 
peachment of  the  order  under  which  they  are  acting." 

60  Eichards  v.  People,  81  111.  551;  Tolleson  v.  Green,  83  Ga.  499, 
10  S.  E.  120;  Tolman  v.  Jones,  114  lU.  148,  28  N.  E.  464;  In  re  Lewis, 
52  Kan.  660,  35  Pac,  287. 


305  THE  RECEIVER'S  POSSESSION.  {  164 

been  in  his  hands  or  under  his  control  at  the  time  de- 
mand was  made  upon  him  by  the  receiver,  is  not  impris- 
onment for  debt,  within  the  meaning  of  the  constitu- 
tional prohibition.^^ 

A  person  within  the  jurisdiction  of  the  appointing 
court  may  be  held  guilty  of  contempt  for  acts  of  in- 
terference committed  by  him  against  the  receiver  in  a 
foreign  state,  as  by  attaching  property  of  the  receiver- 
ship there  situated. ^^ 

§  164.  Possession  Protected  by  Injunction. — It  is  fre- 
quently necessary  for  a  receiver  to  pray  for  an  injunc- 
tion to  restrain  any  unauthorized  interference  with  the 
property  in  his  possession,  and  the  granting  of  such 
an  injunction  in  such  cases  is  a  necessary  incident  to 
the  power  of  appointing  receivers.^^     Thus,  on  the  ap- 

61  See  the  able  and  exhaustive  opinion  of  Lumpkin,  J.,  in  Ryan 
V.  Kingsberry,  88  Ga.  361,  14  S.  E.  596,  reviewing  many  cases. 

62  Chafee  v.  Quidnick  Co.,  13  R.  I.  442;  Sercomb  v.  Catlin,  128  111. 
556,  15  Am.  St.  Rep.  147,  21  N.  E.  606;  Smith  v.  Hosmer,  84  Mich. 
564,  47  N.  W.  1092. 

63  Evelyn  v.  Lewis,  3  Hare,  472;  Dixon  v.  Dixon,  [1904]  1  Ch. 
161;  Davis  v.  Gray,  16  Wall.  203,  21  L.  ed.  447;  In  re  Tyler,  149  U.  S. 
164,  13  Sup.  Ct.  785,  37  L.  ed.  689;  Fidelity  T.  &  S.  V.  Co.  v.  Mobile 
S.  R.  Co.,  53  Fed.  687;  Arthur  v.  Oakes,  63  Fed.  310,  11  C.  C.  A.  209, 
25  L.  R.  A.  414;  Metropolitan  Trust  Co.  v.  Columbia,  S.  &  H.  Ry.  Co., 
95  Fed.  18;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Felton,  103  Fed.  227,  43  C. 
C.  A.  189;  Bibber-Whit©  Co.  v.  White  River  Valley  Electric  Ry.  Co., 
107  Fed.  176;  In  re  Kleinhause,  113  Fed.  107  (receiver  in  bankruptcy 
proceedings);  Marshall  v.  Lockett,  76  Ga.  289;  Woodburn  v.  Smith, 
rt6  Ga.  241,  22  S.  E,  964;  Morgan  v.  New  York  &  A.  R.  Co.,  10  Paige, 
290,  40  Am.  Dec.  244;  In  re  Christian  Jensen  Co.,  128  N.  Y.  550,  28 
N.  E.  665;  Woerishoffer  v.  North  River  Construction  Co.  99  N.  Y. 
398,  2  N.  E.  47.  It  should  be  borne  in  mind  that  the  federal  courts 
are  prohibited  from  granting  injunctions  to  stay  proceedings  in  any 
court  of  a  state,  except  as  may  be  authorized  by  the  bankruptcy 
laws:  U.  S.  Rev.  Stats.,  §  720;  Baker  v.  Ault,  78  Fed.  394.  In  Davis 
V.  Butters  Lumber  Co.,  132  N.  C.  233,  43  S.  E.  650,  a  receiver  was 
allowed  an  injunction  to  restrain  a  resident  creditor  from  suinc;  in 
another  state,  it  appearing  that  such  action  would  interfere  with  the 
collection  of  assets. 

Equitable  Remedies,  Vol.  I — 20 


§  164  EQUITABLE  REMEDIES.  306 

pointinont  of  a  receiver  of  all  the  property  and  effects 
of  a  corporation,  for  the  purpose  of  closing  up  its  affairs, 
it  is  proper  that  the  court  should  make  it  a  part  of  the 
order  that  the  directors  and  officers  of  the  corporation 
be  restrained  from  collecting  any  debts  or  demands  due 
the  company,  and  from  paying  out,  assigning,  or  de- 
livering any  of  the  property,  moneys  or  effects  of  the 
corporation  to  any  other  person,  and  from  incumber- 
ing the  same.^^  The  aid  of  an  injunction  is  frequently 
invoked  in  connection  with  railway  receiverships:  for 
instance,  in  restraint  of  striking  workmen  f^  to  protect 
the  right  of  way  from  an  unwarranted  use  by  another 
company ;®®  to  protect  the  company's  right  to  a  joint 
user  of  the  track  of  another  company  f^  to  restrain  state 
officers  from  disposing  of  a  land  grant,  under  a  claim 
of  forfeiture  to  the  state.^^  The  parties  to  a  suit  con- 
cerning real  property  may  be  enjoined  by  the  receiver 
from  distraining  for  rent.®^     And  a  receiver  may  apply, 

64  Morgan  v.  New  York  &  A.  B.  Co.,  10  Paige,  290,  40  Am.  Dec. 
244,  per  Walworth,  C,  See,  also,  In  re  Christian  Jensen  Co.,  128  N. 
Y.  550,  28  N.  E.  665;  Phoenix  F.  &  M.  Co.  v.  North  River  Construction 
Co.,  33  Hun,  156;  Woerishoffer  v.  North  River  Construction  Co.,  99 
N.  Y.  398,  2  N.  E.  47,  per  Finch,  J.:  "Both  parties  concede  that  the 
possession  of  the  court  must  not  be  invaded;  that  its  officers  cannot 
be  sued  t  ithout  its  permission;  and  that  he  cannot  be  dispossessed 
except  al  the  peril  of  a  contempt.  What  then  must  needs  be  the 
effect  of  the  order  in  this  case?  It  commands  nothing  which  waa 
not  already  commanded;  it  forbids  nothing  which  otherwise  was  per- 
missible; it  takes  away  no  right  or  remedy  which  the  appointment 
of  the  receiver  had  not  already  taken  away.  Its  sole  practical  effect 
was  to  give  notice  of  that  appointment  and  the  right  secured  by  it, 
and  charge  the  specific  creditor  with  a  conscious  and  willful  contempt 
if  he  assailed  the  possession  of  the  court." 

65  Arthur  v.  Oakes,  63  Fed.  310,  11  C.  C.  A.  209,  25  L.  E.  A.  414; 
Bee  post,  §  169. 

66  Fidelity  T.  &  S.  V.  Co.  v.  Mobile  S.  E.  Co.,  53  Fed.  687. 

67  Metropolitan  Trust  Co.  v.  Columbus,  S.  &  H.  Ey.  Co.,  95  Fed.  18. 

68  Davis  V,  Gray,  16  Wall.  203,  21  L.  ed.  417. 
e»  Marshall  v.  Lockett,  76  Ga.  289. 


307  THE  RECEIVER'S  POSSESSION.  S  165 

pending  confirmation  of  his  sale  of  property,  to  protect 
the  possession  of  his  vendee. '^'^ 

Relief  for  such  interference  with  property  belong- 
ing to  the  receiver,  by  strangers  to  the  suit,  may  be  had 
either  by  bill  or  by  petition  in  the  suit,  at  the  discretion 
of  the  court.^^ 

§  165.  Attachment  Ag'ainst  Receiver. — Since  the  posses- 
sion of  the  receiver  is  the  possession  of  the  court  ap- 
pointing him,  "the  property  in  his  hands  as  such  is 
not  subject  to  attachment,'^ ^  nor  is  he  subject  to  gar- 

70  Woodburn  v.  Smith,  96  Ga.  241,  22  S.  E.  964. 

71  In  re  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  785,  37  L.  ed.  689;  Lake 
Shore  &  M.  S.  R.  Co.  v.  Felton,  103  Fed.  227,  43  C.  C.  A.  189;  Bibber- 
White  Co.  V.  White  R.  V.  E.  R.  Co.,  107  Fed.  176;  Vermont  &  C.  R. 
Co.  V.  Vermont  Cent.  R.  Co.,  46  Vt.  792. 

72  Ex  parte  Tillman,  93  Ala.  101,  9  South.  527  (refusing  to  allow  a  party 
to  obtain  possession  of  attached  goods)  ;  Atlas  Bank  v.  Nahant  Bank,  23 
Pick.  480  (attachment  after  filing  of  the  bill  creates  no  lien  on  the  prop- 
erty) ;  Columbian  Book  Co.  v.  De  Golyer,  115  Mass.  67;  Walker  v.  George 
Taylor  C.  Co.,  56  Ark.  1,  18  S.  W.  1056,  19  S.  W.  601;  Wadsworth  v. 
Laurie,  164  111.  42,  49,  45  N.  E.  435;  State  v.  Ellis,  45  La.  Ann.  1418,  14 
South.  308  ("being  [the  property]  already  in  the  hands  of  an  officer 
of  the  court  for  distribution  among  creditors,  the  object  to  be  accom- 
plished by  a  seizure  is  attained");  White  v.  Frankel,  12  Misc.  Rep. 
271,  33  N.  Y.  Supp.  1;  Mosher  v.  Supreme  Sitting  of  O.  of  I.  H.,  88 
Hun,  394,  34  N.  Y.  Supp.  816;  Texas  Trunk  R.  R.  Co.  v.  Lewis,  81  Tex. 
1,  26  Am.  St.  Rep.  776,  16  S.  W.  647;  Merrill  v.  Commonwealth  Mut. 
Fire  Ins.  Co.,  166  Mass.  238,  44  N.  E.  144  (attachment  after  pro- 
<:eedings  commenced  for  winding  up  company  is  void);  Hagedon  v. 
Bank  of  Wisconsin,  1  Pinn.  61,  39  Am.  Dec.  275;  Regenstein  v.  Pearl- 
stein,  30  S.  C.  192,  8  S.  E.  850  (attachment  after  appointment,  and 
before  bond  is  given,  is  ineffectual);  but  see  Naumburg  v.  Hyatt, 
24  Fed.  898,  stating:  "The  fact  that  a  receiver  had  been  appointed 
with  special  and  limited  power  to  execute  the  judgment  in  this  case 
before  the  levy  of  the  attachment  of  petitioners  does  not  necessarily 
avoid  the  levy  and  prevent  the  court  from  waiving  the  apparent  con- 
tempt  and    recognizing   as   valid    such   irregular    proceedings 

The  possession  of  the  property  was  in  no  way  disturbed,  and  there 
was  no  hasty  interference  with  the  proceedings  in  the  pending 
1,'ause":  Halpem  v.  Clarendon  H.  L.  Co.,  64  Ark.  132,  40  S.  W.  784 
(vendor's  right  to  lien  may  be  defeated,  if  not  perfected  before  th« 
appointment). 


g  1G5  EQUITABLE  BEMEDTES.  308 

nishment  on  account  of  it,'^^  or  funds  in  his  bands  or 
subject  to  bis  control  in  tbat  capacity."'^*  But  in  such 
cases  the  court  "may  with  propriety  permit  proceed- 
ings in  garnishment  to  be  brought/'"^^  where,  in  the  dis- 
cretion of  the  court,  justice  requires  itJ®     And  it  has 

73  Blum  V.  Van  Vechten,  92  Wis.  378,  66  N.  W.  507;  Campau 
V.  Detroit  Driving  Club  (Mich.),  98  N.  W.  267;  Vieth  v.  Eess,  60 
"Neb.  52,  82  N.  W.  116  ("and  he  cannot  be  sued  or  summoned,  as  gar- 
nishee in  respect  to  property  in  his  possession  by  virtue  of  his 
trust");  Richards  v.  People,  81  111.  551  ("the  garnishee  proceedings 
were  a  direct  interference  with  the  right  of  the  receiver  since  they 
attempted  to  deprive  him  of  what  was  his  under  the  order  of  his 
appointment");  Missouri  Pac.  Ey.  Co.  v.  Love,  61  Kan.  433,  59  Pac. 
1072;  Commonwealth  v.  Hide  &  Leather  Ins.  Co.,  119  Mass.  155,  gives 
the  following  reason:  "The  property  of  the  corporation  is  intrusted 
to  the  receivers  by  the  authority  of  the  law,  for  the  purpose  of  dis- 
tribution among  the  creditors  of  the  corporation,  not  among  the  cred- 
itors of  those  creditors.  To  undertake  to  determine,  as  incidental  to 
the  administration  of  the  estate  of  the  corporation,  the  validity  and 
equity  of  the  claims  of  every  creditor  of  a  creditor  of  the  corporation, 
would  unreasonably  embarrass  and  delay  the  distribution  of  the  es- 
tate and  the  settlement  of  the  accounts  of  the  receivers";  Holbrook 
V.  Ford,  153  111.  633,  46  Am.  St.  Rep.  917,  39  N.  E.  1091,  27  L.  R.  A. 
324,  distinguishing  Sercomb  v.  Catlin,  128  III.  556,  15  Am.  St.  Rep. 
147,  21  N.  E.  606;  McGowan  v.  Myers,  66  Iowa,  99,  23  N.  W.  282; 
Field  V.  Jones,  11  Ga.  413;  Taylor  v.  Gillean  23  Tex.  508;  Kreislee  v. 
Campbell  89  Tex.  104,  33  S.  W.  853;  Blum  v.  Van  Vechten,  92  Wis. 
378,  66  N.  W.  507;  but  see  Central  Trust  Co.  v.  Chattanooga  E.  & 
C.  E.  Co.,  68  Fed.  685. 

7  4  Blum  v.  Van  Vechten,  supra.  See,  also,  Ex  parte  Tillman,  93 
Ala.  101,  9  South.  527;  People's  Bank  of  Bell  v.  Calhoun,  102  U.  S. 
256,  26  L.  ed.  101  ("it  was  for  the  court  having  possession  to  deter- 
mine how  far  it  would  permit  any  other  court  to  interfere  with  that 
possession,  and  what  effect  it  would  give  to  the  attempt  of  another 
court  to  seize  the  property  so  under  its  control"). 

75  Cohnen  r.  Sweenie,  105  Mich.  643,  63  N.  W.  641  (the  assets 
were  shown  to  be  in  excess  of  the  debt  which  the  receiver  was  to 
satisfy);  approved  in  Citizens'  Com.  &  Sav.  Bank  v.  Bay  Circuit 
Judge,  110  Mich.  633,  68  N.  W.  649  (if  there  is  no  abuse  of  discretion 
ia  granting  the  order,  it  will  not  be  set  aside  on  appeal) ;  Van 
Bianchi  y.  Wayne,  124  Mich.  462,  83  N.  W.  26  (see  for  the  effect  of 
statute);  Yeiser  v.  Gathers  (Neb.),  97  N.  W.  840. 

7«  Ex  parte  Tillman,  93  Ala.  102,  9  South.  527  ("unquestionably 
ih.%  ehaneerj  eonrt  had  authoritj  to  permit  the  levies  of  the  attach 


309  THE  EECEIVER'S  POSSESSION.  i  168 

been  stated  that  "where  the  case  in  which  their  appoint- 
ment has  been  made  has  been  settled,  or  where  they 
have  a  fund  in  their  hands  over  and  above  the  amount 
necessary  to  satisfy  tbe  judgment,"  an  attachment  or 
garnishment  is  not  an  improper  interference  with  the 
court's  possession.'^' 

§  166.  Property  in  Receiver's  Possession  not  Subject  to 
Sale  Under  Execution — It  is  a  general  rule  that  property 
in  the  hands  of  a  receiver  is  not  subject  to  execution 
sale  without  leave  of  the  court. '^^  The  reason  for  the 
rule  is  thus  given :  "When  a  court  of  equity  has  under- 

ments,  and,  had  they  been  levied  by  leave  of  the  court  first  obtained, 
the  levies  would  have  been  legal  and  valid").  See,  also,  Wallace  r. 
Wallace,  21  App.  Div.  542,  48  N.  Y.  Supp.  592. 

77  Eussell  V.  Millett,  20  Wash.  212,  55  Pae.  44;  see,  also,  Smith  ▼. 
People,  93  111.  App.  135.  But  this  is  expressly  denied  by  Campbell, 
J.,  in  People  v.  Brooks,    40  Mich.  333,  29  Am.  Eep.  534. 

78  Eussell  V.  East  Anglian  Ey.,  3  Macn.  &  G.  104;  WiswaU  v.  Samp- 
son, 14  How.  52,  65,  14  L.  ed.  322;  State  of  Georgia  v.  Jesup,  106 
U.  S.  458,  464,  1  Sup.  Ct.  363,  27  L.  ed.  216;  Wheeler  v.  Wal- 
ton etc.  Co.,  65  Fed.  720;  In  re  Hall  &  Stilson  Co.,  73  Fed,  527; 
Bugger  V.  Collins,  69  Ala.  324;  Premier  Steel  Co.  t.  McElwaine- 
Eichards  Co.,  144  Ind.  614,  43  N.  E.  876;  Gardner  v.  Caldwell,  16  Mont. 
221,  40  Pac.  590,  and  numerous  authorities  reviewed;  Walling  v. 
Miller,  108  N.  Y.  173,  2  Am.  St.  Eep.  400,  15  N.  E.  65;  Skinner  v. 
Maxwell,  68  N.  C.  400;  Pelletier  v.  Greenville  Lumber  Co.,  123  N.  C. 
696,  68  Am.  St.  Eep.  837,  31  S.  E.  855;  Eobinson  v,  Atlantic  &  G.  W. 
E.  Co.,  66  Pa.  St.  160;  Thompson  v.  McCleary,  159  Pa.  St.  189,  28 
Atl.  254;  Edwards  v.  Norton,  55  Tex.  405;  Eussell  v.  Texas  &  P.  E 
Co.,  68  Tex.  646,  5  S.  W.  686;  Ellis  v.  Vernon  etc.  Co.,  86  Tex.  109 
23  S.  W.  858;  Hammond  v.  Tarver,  11  Tex.  Civ.  App.  48,  31  S.  W 
841.  For  limitations  on  the  rule,  see  Hickox  v.  Holladay,  29  Fed, 
226,  233  (following  WiswaU  v.  Sampson,  but  with  reluctance) ;  Peta 
luma  Sav.  Bk.  v.  Superior  Court,  111  Cal.  488,  44  Pac.  177;  Chau 
tauqua  Co.  Bank  v.  Eisley,  19  N.  Y.  369,  75  Am.  Dec.  347;  In  re  Loos, 
50  Hun,  67,  3  N.  Y.  Supp.  383;  Wilkinson  v.  Paddock,  57  Hun,  191 
11  N.  Y.  Supp.  442,  affirmed  on  appeal,  125  N.  Y.  748,  27  N.  E.  407 
St.  Louis  etc.  E.  Co.  v.  Whitaker,  68  Tex.  630,  5  S.  W,  448;  Cherry 
V.  Western  Washington  I.  E.  Co.,  11  Wash.  586,  40  Pae.  136;  Cass 
V.  Sutherland,  98  Wis.  551,  74  N.  W.  S37. 


i  166  EQUITABLE  REMEDIES.  310 

taken  to  adjudicate  upon  and  distribute  a  fund  among 
the  parties  entitled  to  it,  it  would  be  inconvenient  if  a 
court  of  law  (or  any  other  court)  could  by  its  process 
interrupt  the  adjudication  and  create  new  rights  in  the 
property  itself."'^'  The  argument  that  a  sale  on  execu- 
tion of  land  in  the  possession  of  a  receiver  occasions  no 
interference  with  the  possession  of  the  receiver,  and 
hence  no  contempt  of  the  authority  of  the  court,  does 
not  meet  the  objection.^"^  "The  end  sought  by  the  rule 
is  not  only  the  avoidance  of  conflict  in  the  jurisdiction 
of  the  courts,  but  the  preservation  of  the  interests  of 
creditors  and  debtor.  These  interests  have  been  in- 
trusted to  the  court  of  equity,  which  affords  a  more 
comprehensive  and  perfect  system  of  justice  than  the 
court  of  law,  in  order  that  all  may  be  guarded  and  pro- 
tected, each  with  reference  to  every  other."  Further, 
sales  on  execution  of  property  in  a  receiver's  hands 
would  usually  be  sales  at  a  sacrifice,  and  redemption 
from  such  sales  attended  with  embarrassment.^* 

79  Skinner  v.  Maxwell,  68  N.  C.  404. 

80  Wiswall  V.  Sampson,  14  How.  52,  66,  14  L.  ed.  322.  "The  prop- 
erty is  a  fund  in  court,  to  abide  the  event  of  the  litigation,  and  to  be 
applied  to  the  payment  of  the  judgment  creditor,  who  has  filed  his 
bill  to  remove  impediments  in  the  way  of  his  execution.  If  he  haa 
Bucceeded  in  establishing  his  right  to  the  application  of  any  portion 
of  the  fund,  it  is  the  duty  of  the  court  to  see  that  such  application 
id  made.  And,  in  order  to  effect  this,  the  court  must  administer  it 
independently  of  any  rights  acquired  by  third  persons,  pending  the 
litigation.  Otherwise,  the  whole  fund  may  have  passed  out  of  its 
hands  before  the  final  decree,  and  the  litigation  become  fruitless." 
See,  also,  Dugger  v.  Collins,  69  Ala.  324. 

81  Premier  Steel  Co.  v.  McElwaine-Richarda  Co.,  144  Ind.  614,  43 
N.  E.  876,  per  Hackney,  C.  J.,  who  continoes:  "If  the  right  of  the 
lower  court  was  to  direct  the  sale  by  its  own  officer,  and  upon  execu- 
tion, as  in  other  instances,  that  right  would  be  in  utter  disregard  of 
the  condition  of  the  estate  as  to  the  ability  of  the  receiver  to  realize 
by  certificates,  rentals,  or  other  means,  permitted  by  the  court  in  pos- 
■ession,  sums  sufficient  to  pay  the  appellee's  claim  and  extinguish 
the  lien.  Any  possible  right  of  the  receiver  to  redeem  would  be  em- 
barrassed   by    additional    costs    and    ultimate    losses    to    the    general 


311  THE  EECEIVER'S  POSSESSION.  I  166 

The  rule  is  not  to  be  understood  as  absolutely  pre- 
venting the  acquisition  of  new  riy,hts  to  the  fund  in 
controversy  after  the  commencement  of  the  proceedings. 
Any  person  claiming  to  have  acquired  such  an  inter- 
est, while  he  cannot  interfere  under  the  process  of  an- 
other court,  may,  under  the  old  equity  practice,  apply 
to  the  court  which  has  jurisdiction  of  the  fund,  pro 
interesse  suo,  and  his  claim  will  be  heard.^^  The  same 
result  can  now  be  accomplished  by  a  petition  and  mo- 
tion in  the  cause  ;^^  and  in  administering  the  fund,  the 
court  will  take  care  that  the  rights  of  prior  liens  or 
incumbrances  shall  not  be  destroyed;  and  will  adopt 
proper  measures,  by  reference  to  the  master  or  other- 
wise, to  ascertain  them,  and  bring  them  before  it.^^ 

creditors,  and  a  redemption  by  any  creditor  would  not  only  meet  the 
same  embarrassment,  but  it  would  result  either  in  giving  such  re- 
deeming creditor  an  advantage  over  other  creditors,  or  of  redeeming 
to  his  own  inconvenience,  that  all  creditors  might  be  protected.  If 
the  whole  subject  were  within  the  control  of  the  court  appointing  the 
receiver,  the  lienholder's  interests  could  be  protected  by  his  right  of 
priority  to  the  proceeds  of  any  sale;  the  opportunity  for  competition 
in  selling  at  private  sale  would  be  afforded;  the  wisdom  of  the  chan- 
cellor would  be  taken  upon  the  prudence  and  fairness  of  the  sale  and 
the  adequacy  of  the  consideration;  costs  would  be  spared,  and  re- 
demption complications  avoided."  See,  also,  Gardner  v.  Caldwell, 
16  Mont.  221,  40  Pac.  590.  In  Pelletier  v.  Greenville  Lumber  Co., 
123  N.  C.  596,  68  Am.  St.  Eep.  837,  31  S.  E.  855,  Douglas,  J.,  says  of 
the  doctrine  permitting  the  sale  of  real  estate,  provided  it  does  not 
interfere  with  the  actual  possession  of  the  receiver:  "Its  practical 
effect  would  be  either  to  permit  outside  parties  to  stop  all  further 
proceedings  of  a  court  of  equity  by  disposing  of  the  subject-matter 
in  controversy,  or  else  to  put  that  court  in  the  position  of  holding 
simply  the  naked  possession  of  property  and  gravely  proceeding  to 
determine  who  would  have  been  entitled  to  the  property  if  it  had 
not  been  sold! " 

82  Skinner  v.  Maxwell,  68  N.  C.  400,  404;  Wiswall  v.  Sampson,  14 
How.  52,  65,  14  L.  ed.  322;  Dugger  v.  Collins,  69  Ala.  324. 

83  Pelletier  v.  Greenville  Lumber  Co.,  123  N.  C.  596,  31  S.  E.  855, 
68  Am.  St.  Rep.  837;  and  other  cases,  supra,  in  note  78. 

84  WiswaU  V.  Sampson,  14  How.  52,  66,  67,  14  L.  ed.  322;  In  re  Hall 
&  Stillson  Co.,  73  Fed,  527,  536. 


5  166  EQUITABLE  REMEDIES.  312 

In  some  cases,  where  the  property  in  dispute  is  ample, 
and  the  litigation  protracted,  it  may  be  fit  and  proper 
for  the  court  to  permit  the  execution  to  issue;  but  such 
proceedings  should  be  under  the  control  of  the  discre- 
tion of  the  court,  as  the  condition  of  the  title  to  the 
property  may  frequently  be  so  complicated  and  em- 
barrassed, that  unless  the  sale  is  withheld  until  the 
title  is  cleared  up  by  the  judgment  of  the  court,  great 
sacrifice  must  necessarily  ensue  to  the  parties  inter- 
ested;^^ and  authority  to  issue  an  execution  on  a  prior 
judgment  should  be  withheld,  in  absence  of  a  satisfac- 
tory showing  that  there  is  any  urgent  necessity  for  a 
speedy  sale,  or  that  the  petitioner  will  be  prejudiced 
by  allowing  the  receiver  to  administer  the  estate  and  to 
distribute  the  fund  with  due  regard  to  priority  of 
claims.^* 

Giving  consent  to  making  the  receiver  a  party  de- 
fendant to  an  action  in  another  court  to  establish  a 
lien  against  the  j)roperty  does  not  authorize  such  other 
court  to  order  a  sale  of  the  property  on  execution.^^ 

It  is  held  that  the  doctrine  of  non-interference  does 
not  extend  so  far  as  to  prevent  a  sale,  without  leave,  of 
property  to  which  the  receiver  was  not  entitled  under 
the  order  of  appointment;^^  and  it  appears  to  be  held 

85  Wiswall  V.  Sampson,  14  How.  52,  68,  14  L.  ed.  322;  In  re  Hall 

6  Stillson  Co.,  73  Fed.  527,  536  (refusing  leave  to  issue  execution, 
where  property  not  ample  to  meet  all  claims,  and  title  embarrassed). 
Leave  was  granted  in  Pelletier  v.  Greenville  Lumber  Co.,  123  N.  C. 
596,  68  Am.  St.  Eep.  837,  31  S.  E.  855;  In  re  Thompson,  10  App.  Div. 
40,  41  N,  Y.  Supp.  740;  Case  v.  Sutherland,  98  Wis.  551,  74  N.  W. 
337;  and  Cohen  v.  Gold  Creek  etc.  Co.,  95  Fed.  580  (receiver  showing 
DO  diligence  in  executing  the  trust). 

86  Wheeler  v.  Walton  etc.  Co.,  65  Fed.  720.  That  the  petition  should 
not  be  determined  without  notice  to  the  parties  in  the  original  suit, 
see  In  re  Hall  &  Stillson  Co.,  69  Fed.  425. 

87  Premier  Steel  Co.  v.  McElwaine-Richards  Co.,  144  Ind.  614,  43 
N.  E.  876. 

88  St.  Louis  etc.  E.  Co.  v.  Whitaker,  68  Tex.  630,  5  S.  W.  448. 


313  THE  RECEIVER'S  POSSESSION.  §   167 

in  California  that  the  appointment  of  a  receiver  of  the 
separate  real  estate  of  the  husband  in  an  action  for 
divorce,  in  order  to  enforce  a  decree  for  alimony 
awarded  to  the  wife,  does  not  prevent  the  enforcement 
of  a  judgment  lien  upon  such  real  estate  by  a  judgment 
creditor  of  the  husband,  whether  such  lien  be  prior  or 
subsequent  to  the  lien  of  the  decree  for  alimony,  and  it 
is  not  necessary  that  there  should  be  an  application  by 
such  judgment  creditor  to  the  court  appointing  the  re- 
ceiver before  proceeding  to  sell  such  real  estate  under 
€xecution.^* 

§  167.  Same;  Illustrations;  Execution  Sales  Under  Subse- 
quent, and  Under  Prior  Liens.— When,  on  a  creditor's  bill, 
the  judgment  debtor  has  made  an  assignment  of  all  his 
property  to  the  receiver,  under  an  order  of  court,  a  sub- 
sequent judgment  against  the  receiver  does  not  bind  the 
land,  since  the  debtor  has  no  title  or  interest  left  to 
which  the  judgment  could  attach;  and,  therefore,  a 
sale  on  execution  levied  under  such  subsequent  judgment 
is  void  as  against  a  sale  by  the  receiver.^"  But  such 
an  assignment  or  conveyance  to  the  receiver  is  not 
necessary  in  order  to  invalidate  execution  sales  upon 
judgments  recovered  during  the   receivership.     Thus, 

89  Petaluma  Savings  Bank  v.  Superior  Court,  111  Cal.  488,  44  Pac. 
177.  It  is  difficult  to  determine  from  the  opinion  of  Beatty,  C.  J., 
VFhether  this  rule  is  limited  to  receivership  in  this  particular  clasa 
of  actions.  If  intended  to  be  of  general  application,  it  is,  of  course, 
•contrary  to  the  whole  current  of  authority.  Wiswall  v.  Sampson  ia 
distinguished  (pp.  500,  501)  on  the  ground  that  there  the  fund  sought 
to  be  reached  on  execution  was  "the  creation  of  the  court  appointing 
the  receiver,  and  was  necessarily  subject  to  its  disposition."  In  con- 
sidering the  weight  to  be  attached  to  this  decision  it  is  well  to  re- 
member that  the  supreme  court  of  California  has,  in  several  cases, 
taken  an  extremely  narrow  view  of  the  receiver's  title,  in  apparent 
indifference  to  the  consensus  of  opinion  elsewhere. 

»o  Chautauqua  County  Bank  y.  White,  6  N.  Y.  236,  57  Am.  Dee. 
442. 


§  1G7  EQUITABLE  REMEDIES.  314- 

the  purchaser  at  an  execution  sale  of  property  in  the 
possession  of  a  receiver  for  the  purpose  of  collecting 
the  rents,  on  a  judgment  recovered  subsequent  to  the 
appointment,  takes  no  title  ;^^  and  the  same  is  true 
when  the  judgment  was  recovered  before  the  appoint- 
ment, but  no  lien  was  acquired  by  levy  upon  the  land 
until  after  the  receiver  had  taken  possession.^^  Such 
levy  and  sale  is  not  only  ineffectual  to  pass  title,  but 
may  be  restrained  on  the  receiver's  petition  as  an  in- 
terference with  his  control;  thus,  a  levy,  subsequent 
to  the  appointment  of  a  receiver  of  all  the  mortgaged 
property  of  a  company,  upon  land  which  was  covered 
by  the  mortgage,  was  set  aside,  and  further  proceedings 
under  the  execution  restrained,  although  the  judgment 
upon  which  the  execution  was  issued  was  recovered  be- 
fore the  appointment  of  the  receiver  ;^^  and  a  receiver 
having  in  custody  property  of  a  corporation  may  re- 
strain execution  against  such  property  on  a  subsequent 
judgment.** 

Where,  on  the  other  hand,  the  property  in  the  hands 
of  the  receiver  is  subject  to  a  prior  lien,  the  question 
of  the  right  and  power  of  the  holder  of  such  lien  to 
enforce  it  without  the  consent  of  the  court  which  has 
appointed  the  receiver  is  one  of  much  difficulty,  and 

91  Edwards  v.  Norton,  55  Tex.  405;  see,  also,  Kussell  v.  Texas  P. 
R.  R.  Co.,  68  Tex.  646,  5  S.  W.  686. 

92  Dugger  V.  Collins,  69  Ala.  324. 

93  Robinson  v.  Atlantic  &  G.  W.  R.  Co.,  66  Pa.  St.  160.  The  court 
gays:  "If  the  property  might  be  taken  piecemeal  from  the  custody 
of  the  receiver,  the    remedy  of  the    creditors    under  the   mortgage 

would   become   worthless,   or  at    least   greatly  imperiled If   a 

creditor  believes  that  the  property  was  not  legally  mortgaged,  or  for 
any  good  reason  should  not  pass  into  the  hands  of  the  receiver,  his 
duty  is  to  apply  to  the  court  having  appointed  the  receiver  to  ask 
its  discharge  out  of  custody  in  order  that  he  may  proceed  against  it." 

94  Gardner  v.  Caldwell,  16  Mont.  221,  40  Pac.  590,  and  cases  cited;. 
Thompson  v.  McCleary,  159  Pa.  St.  189,  28  Atl.  254  (decree  without 
prejudice  to  the  defendants'  right  to  apply  to  the  proper  court). 


315  THE  EECEIVER'S  POSSESSION.  §  167 

has  given  rise  to  some  conflict  of  decision.  The  weight 
of  authority,  notwithstanding  some  vigorous  dissent, 
appears  to  support  the  negative  of  this  question.  The 
facts  in  the  leading  case^'^  have  been  thus  stated  (the 
action  was  ejectment) :  "The  demanded  premises  in  that 
action  had  belonged  to  Ticknor,  who  had  conveyed  them 
in  fraud  of  creditors  to  Day  prior  to  December,  1840. 
At  that  date  plaintiff's  lessors  recovered  a  money  judg- 
ment against  Ticknor,  execution  upon  which  was  re- 
turned nulla  bona.  In  1842  another  creditor  recovered 
judgment  against  Ticknor  and  thereafter  commenced 
a  suit  in  equity  to  set  aside  the  conveyance  to  Day.  He 
succeeded  in  his  action,  and  after  the  conveyance  was 
set  aside  a  receiver  of  the  property  was  appointed. 
While  the  receiver  was  in  possession  plaintiff's  lessors, 
without  leave  asked  or  granted,  sold  it  under  an  alias 
execution  issued  upon  his  judgment  of  1840.  The  de- 
fendant in  the  ejectment  suit  claimed  under  the  re- 
ceiver, and  it  was  held  in  his  favor  that  the  execution 
sale  passed  no  title."  A  few  years  later  the  court  of 
appeals  of  New  York  reached  an  opposite  conclusion 
in  a  case  presenting  facts  very  similar.^^  "The  opin- 
ion in  that  case  lays  down  the  broad  doctrine  that,  if 
a  judgment  creditor  have  a  lien  upon  real  estate  by 
virtue  of  his  judgment  at  the  time  of  the  appointment 
of  a  receiver,  he  may  be  guilty  of  contempt  by  the  at- 
tempt to  enforce  the  collection  of  his  judgment  by  a 

95  Wiswall  V.  Sampson,  14  How.  52,  14  L.  ed.  322  (December  term, 
1852),  opinion  by  Justice  Nelson.  The  cases  holding  the  affirmative 
of  the  question  usually  attempt  to  distinguish  this  case,  and  limit  it 
to  its  particular  facta.  The  summary  of  the  facts  is  taken  from  the 
opinion  of  Beatty,  C.  J.,  in  Petaluma  Sav.  Bank  v.  Superior  Court, 
HI  Cal.  488,  500,  44  Pac.  177. 

96  Chautauqua  County  Bank  v.  Eisley,  19  N.  Y,  369,  75  Am.  Dec. 
347.  The  summary  of  this  case  is  taken  from  the  opinion  of  Gaines, 
J.,  in  Ellis  V.  Vernon  Ice,  Light  and  Water  Co.,  86  Tex.  109,  23  S.  W. 
658. 


I    !()7  EQUITABLE  REMEDIES.  316 

sale  under  execution,  but  that,  if  the  sale  be  made,  it 
is  neither  illegal  nor  void.  The  facts  of  the  case  were 
that  a  judgment  creditor,  where  execution  had  been  re- 
turned unsatisfied,  sued  his  debtor  to  set  aside  a  fraud- 
ulent assignment  of  real  estate,  and  had  a  receiver  ap- 
pointed. He  prevailed  in  his  suit,  and,  by  order  of  the 
court,  the  receiver  sold  the  property.  A  few  days  after 
the  same  property  was  sold  under  an  execution  issued 
upon  a  judgment  against  the  same  debtor,  which  was 
rendered  before  the  appointment  of  a  receiver,  and 
which  was  a  lien  upon  the  property.  The  court  held 
that  the  purchaser  at  the  sheriff's  sale  took  a  good  title. 
The  judgment  which  was  sought  to  be  collected  by  the 
suit  in  which  the  receiver  was  appointed  was  older  than 
the  judgment  under  which  the  property  was  sold  by  the 
sheriff,  and  was  also  a  lien  upon  the  property.  But 
the  court  was  of  opinion  that  the  defendant,  who 
claimed  through  the  receiver,  took  only  such  title  as 
was  conveyed  to  the  receiver  by  the  deed  of  the  party 
over  whose  property  he  was  appointed,  and  that  this 
conveyance  passed  the  property  subject  to  the  lien  of 
the  judgment  under  which  it  was  sold  by  the  constable, 
and  that,  therefore,  the  purchaser  at  execution  sale 
took  the  superior  title.  It  appears  that  the  laws  of 
New  York  required  a  conveyance  to  the  receiver,  in 
order  to  perfect  his  control  over  real  estate,  but  that 
in  case  of  personal  property  no  such  conveyance  was 
necessary.  Subsequently,  in  Walling  v.  Miller,  108  N. 
Y.  173,  2  Am.  St.  Rep.  400,  15  N.  E.  65,  the  same  court 
held  that  where  the  sheriff  had  a  levy  upon  personal 
property,  and  a  receiver  was  subsequently  appointed,  a 
sale  by  the  sheriff  after  the  appointment,  without  leave 
of  the  court,  was  wholly  illegal  and  void.  If  these  de- 
cisions can  be  reconciled,  it  must  be  upon  the  ground 
that  under  the  laws  of  that  state  the  receiver  derives 


317  THE  EECEIVER'S  POSSESSION.  §   167 

his  title  to  real  estate  only  through  the  conveyance  of 
the  defendant  in  the  action,  and  that,  because  such 
conveyance  is  not  necessary  as  to  personal  property,  a 
different  rule  applies.  In  re  Loos,  50  Hun,  67,  3  N.  Y. 
Supp.  383.^^  It  would  seem,  however,  that  in  Walling 
V.  Miller  the  court  intended  to  overrule  the  case  of 
Bank  y.  Risley,  although  they  do  not  expressly  say  so. 
In  the  later  case  they  rely  upon  Wiswall  v.  Sampson," 
the  authority  of  which  was  expressly  denied  in  Cha- 
tauqua  Bank  v.  Risley.  The  case  from  the  opinion  in 
which  the  above  extract  is  taken,^^  was  one  of  an  execu- 
tion of  sale  of  land  belonging  to  a  corporation,  subse- 
quent to  the  appointment,  under  a  levy  made  prior  to  the 
appointment  of  a  receiver  of  the  corporation.  The 
court,  holding  such  sale  ineffective  to  pass  title,  says, 
with  much  force:  "To  permit  the  control  of  a  receiver 
to  be  interfered  with  by  virtue  of  process  from  another 
court  would  be  a  practice  fraught  with  injustice,  and 
productive  of  confusion;  and  that  remark  applies  with 
especial  force  to  the  receivers  of  insolvent  corporations. 

•7  The  doctrine  of  Walling  v.  Miller  appears  to  be  limited  by  a 
later  case,  in  which  it  was  claimed  by  a  receiver  that  a  sale  of  the 
property  of  the  corporation  under  an  execution  after  his  appointment 
was  absolutely  void,  but  the  court  held  that,  as  the  sheriff  had  seized 
the  property,  and  had  it  in  his  possession  at  the  time  of  the  appoint- 
ment of  the  receiver,  the  sale  was  not  void,  but,  at  most,  should  bo 
held  simply  voidable:  Varnum  v.  Hart,  119  N.  Y.  101,  23  N.  E.  183 
as  explained  in  Moore  v.  Potter,  155  N.  Y.  481,  63  Am.  St.  Eep.  692, 
50  N.  E.  271.  See,  also.  Smith  v.  Davis,  63  Hun,  100,  17  N.  Y.  Supp. 
614  (receiver  not  in  possession  of  the  property  on  which  execution 
was  levied,  and  claimed  no  right  or  interest  in  it). 

It  was  held  in  an  early  New  York  case  that  the  levy  and  sale  by 
the  sheriff  of  real  estate  in  the  receiver's  possession,  upon  a  prior 
judgment  which  was  a  lien  on  the  land,  did  not  disturb  the  receiver's 
possession,  and  was  not  a  contempt  of  court:  Albany  City  Bank 
V.  Schermerhorn,  9  Paige,  372,  38  Am.  Dec.  551;  10  Paige,  263;  see 
criticism  of  this  case  in  Pelletier  v.  Greenville  Lomber  Co.,  123  N,  0. 
596,  68  Am.  St.  Eep.  837,  31  S.  K  855. 

»8  Ellis  T.  Yemon  Ice,  L.  4  W.  Co.,  86  Tex.  109,  23  a  W.  858. 


i  167  EQUITABLE  REMEDIES.  318 

After  all  the  assets  of  a  corporation  have  been  taken 
from  its  managers,  and  placed  under  the  control  of  a 
receiver,  is  it  just  to  allow  its  property  to  be  sold  un- 
der execution?  The  court,  having  deprived  the  cor- 
poration of  the  power  of  paying  the  debt  and  of  avoid- 
ing the  sale,  should,  in  the  interest  of  all  concerned, 
protect  its  property  from  the  sacrifice."  Further  cases 
to  the  same  effect  are  cited  in  the  note.^^ 

The  affirmative  of  the  question  under  consideration 
has,  however,  received  vigorous  support.  Thus,  it  is 
held  that  where  the  property  of  an  insolvent  foreign 
corporation  has  been  seized  by  the  sheriff  under  a  war- 
rant of  attachment  issued  by  a  state  court  in  an  action 
which  was  afterwards  prosecuted  to  judgment,  and  ex- 
ecution issued  and  levy  made  upon  the  property  seized, 
a  receiver  appointed  subsequent  to  the  attachment  by 
the  United  States  circuit  court  of  the  district  in  which 
such  property  is  situated  cannot  obtain  a  summary 
order  to  the  sheriff  to  surrender  the  seized  property.^*^*^ 
In  a  series  of  cases  in  Washington  it  is  held  that  where 
a  creditor  has  attached  property,  the  court  has  no  au- 
thority to  direct  a  receiver  appointed  in  an  action  other 
than  the  attachment  suit  to  take  possession  of  the  at- 
tached property,  as  the  attachment  creditor  has  not 
only  the  right  to  have  his  debt  paid  out  of  the  proceeds 
of  such  property,  but  to  have  the  sheriff  retain  it  intact 

99  Pelletier  v.  Greenville  Lumber  Co.,  123  N.  C.  596,  68  Am.  St.  Eep. 
837,  31  S.  E.  855  (holding  that  land  belonging  to  an  insolvent  cor- 
poration cannot,  as  a  matter  of  right  and  without  leave  of  the  court, 
be  sold,  after  the  appointment  of  a  receiver,  upon  a  valid  judgment 
obtained  before  such  appointment);  State  of  Georgia  v.  Jesup,  106 
U.  S.  458,  1  Sup.  Ct.  3G3,  27  L.  ed.  216,  as  explained  in  In  re  Hall  & 
Stillson  Co.,  73  Fed.  527,  535;  Wheeler  v.  Walton  etc.  Co.,  65  Fed. 
720  (execution  sale  not  permitted  without  urgent  reasons) ;  Earle  v. 
Commonwealth,  178  U.  S.  449,  20  Sup.  Ct.  915,  44  L.  ed.  1146. 

100  Cole  V.  Oil- Well  Supply  Co.,  57  Fed.  534.  See,  also,  In  re  Hall 
4  Stillson  Co.,  73  Fed.  527. 


519  THE  RECEIVEE'S  POSSESSION.  6  167 

in  the  meantime,  under  ordinary  circumstances;^"^  and 
that  where  a  judgment  was  recovered  and  execution 
levied  on  land  prior  to  the  appointment  of  the  receiver 
of  a  corporation,  the  judgment  creditor  may  lawfully 
proceed  to  a  sale,  and  the  purchaser  thereunder  is  en- 
titled to  a  deed  from  the  sheriff.^^^  ^  similar  view  is 
held  in  California,  at  least  in  relation  to  the  receiver- 
ship of  the  estate  of  the  husband  in  an  action  for  di- 
vorce.^^^ 

On  the  whole,  it  may  be  said  that  the  doctrine  of 
Wiswall  V.  Sampson,  in  the  fifty  years  of  the  history  of 
that  case,  has  been  generally  accepted  in  the  full  breadth 
and  scope  with  which  it  was  laid  down.  Reasons  of 
convenience  are  in  its  favor;  and  its  proper  application 

101  state  V.  Superior  Court  of  Snohomish  County,  7  Wash.  77,  34 
Pac.  430;  State  v.  Superior  Court  of  Chehalis  County,  8  Wash.  210, 
35  Pac.  1087,  25  L.  R.  A.  354.  In  the  latter  case,  Wiswall  v,  Samp- 
son is  distinguished  on  the  ground  that  the  receiver  there  was  in  ac- 
tual possession.  See  further  as  to  this  case,  the  later  case  of  State 
V.  Superior  Court  of  King  County,  11  Wash.  63,  39  Pac.  244,  holding 
that  he  may  be  allowed,  under  some  circumstances,  to  take  possession 
of  the  property  affected  by  the  prior  lien. 

102  Cherry  v.  Western  Washington  I.  E.  Co.,  11  Wash.  586,  40  Pac. 
136. 

103  Petaluma  Savings  Bank  v.  Superior  Court,  111  Cal.  488,  44  Pac. 
177.  Mr.  High,  in  the  third  edition  of  his  work  on  Receivers  (5 
141,  note),  gives  the  weight  of  his  opinion  in  support  of  the  right  of 
the  prior  lienholder:  "The  cases  of  Walling  v.  Miller,  108  N.  Y.  173, 
2  Am.  St.  Rep.  400,  15  N.  E.  65,  and  Ellis  v.  Vernon  I.,  L.  &  W.  Co., 
86  Tex.  109,  23  S.  W.  858,  may  be  regarded  as  extending  the  doc- 
trine of  non-interference  with  the  receiver's  possession  to  its  extrem.^ 
limits,  since  the  lien  of  the  judgment  creditor  having  been  perfected 
by  levying  his  execution  before  the  appointment  of  the  receiver,  it 
would  seem,  upon  principle,  to  be  the  better  doctrine  that  the  rights 
thus  acquired  are  paramount  to  the  receivership,  and  that  the  judg- 
ment creditor  should  be  permitted  to  proceed  with  his  levy  and  sale, 
without  being  required  to  seek  relief  in  the  cause  in  which  the  re- 
ceiver is  appointed."  But,  it  may  be  asked,  has  not  the  learned  au- 
thor, in  thus  speaking  of  these  cases  as  a  new  departure,  overlookcil 
the  leading  case  on  the  whole  subject,  Wiswall  v.  Sampson? 


g  166  EQUITABLE  REMEDIES.  320 

can  never  result  in  "the  hardship  on  judgment  cred- 
itors" which  would  ensue  "if  they  could  be  restrained 
from  enforcing  collection  of  a  judgment  and  lien  given 
by  the  court  indefinitely."^"^* 

§  168.  Property  in  Receiver's  Possession  cannot  be  Seized 
for  Taxes — The  principle  that  the  receiver's  possession 
is  exclusive,  and  will  be  protected  from  interference 
without  leave  of  the  court  whose  hand  he  is,  is  strik- 
ingly illustrated  by  the  rule,  firmly  established  in  the 
federal  courts,  that  property  in  the  receiver's  possession 
is  exempt  from  levy  and  sale  by  state  officers  in  col- 
lection of  taxes.^*^^     Such  levy  and  sale  may  be  en- 

104  Clark,  J.,  concurring  in  result  in  Pelletier  v.  Greenville  Lumber 
Co.,  123  N.  C.  596,  6S  Am.  St.  Eep.  837,  31  S.  E.  855. 

105  In  In  re  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  785,  13  L.  ed.  689, 
the  court  states:  "The  general  doctrine  that  property  in  the  posses- 
sion of  a  receiver  appointed  by  a  court  is  in  custodia  legis,  and  that 
unauthorized  interference  with  such  possession  is  punishable  as  a 
contempt,  is  conceded,  but  it  is  contended  that  this  salutary  rule  has 
no  application  to  the  collection  of  taxes.  Undoubtedly,  property  so 
situated  is  not  thereby  rendered  exempt  from  the  imposition  of  taxes 
by  the  government  within  whose  jurisdiction  the  property  is,  and 
the  lien  for  taxes  is  superior  to  all  other  liens  whatsoever  except 
judicial  costs,  where  the  property  is  rightfully  in  the  custody  of  the 
law;  but  this  does  not  justify  a  physical  invasion  of  such  custody, 
and  a  wanton  disregard  of  the  orders  of  the  court  in  respect  of  it. 
The  maintenance  of  the  system  of  cheeks  and  balances  characteristic 
»f  republican  institutions  requires  the  co-ordinate  departments  of 
government,  whether  federal  or  state,  to  refrain  from  any  interfer- 
ence with  the  independence  of  each  other;  and  the  possession  of  prop- 
erty by  the  judicial  department  cannot  be  arbitrarily  encroached  upon^ 
«ave  in  violation  of  this  fundamental  principle. 

"The  levy  of  a  tax  warrant,  like  the  levy  of  an  ordinary  fieri  facias, 
sequestrates  the  property  to  answer  the  exigency  of  the  writ;  but 
property  in  the  possession  of  the  receiver  is  already  in  sequestration, 
already  held  in  equitable  execution,  and,  while  the  lien  for  taxes 
must  be  recognized  and  enforced,  the  orderly  administration  of  jus- 
tice requires  this  to  be  done  by  and  under  the  sanction  of  the  court. 
It  is  the  duty  of  the  court  to  see  to  it  that  this  is  done,  and  a  seizure 
of  the  property  against  its  will  can  only  be  predicated  upon  the  as- 


321  THE  EECEIVER'S  POSSESSION.  §  168 

joined,^ °®  and  the  officer  making  the  same  may  be  pun- 
ished for  contempt  ;^*''^  and  it  is  held  that  such  sale  is 
void  and  confers  no  title  upon  the  purchaser,^ **^  and 
that  a  judgment  for  the  amount  of  the  taxes  may  be 
removed  as  a  cloud  upon  title.^**^  This  conclusion,  says 
Chief  Justice  Fuller,  "does  not  involve  interruption  in 
the  payment  of  taxes,  or  the  displacement  or  impair- 
ment of  the  lien  therefor ;  but,  on  the  contrary,  it  makes 
it  the  imperative  duty  of  the  court  to  recognize  as  para- 
mount, and  enforce  with  promptness  and  vigor,  the  just 
claims  of  the  authorities  for  the  prescribed  contribu- 
tions to  state  and  municipal  revenue."^ ^*^     The  usual 

Bumption  that  the  court  will  fail  in  the  discharge  of  its  duty — an 
assumption  carrying  a  contempt  upon  its  face."  See  King  v.  Wooten, 
2  U.  S.  App.  651,  54  Fed.  612,  4  C.  C.  A.  519;  Ex  parte  Chamberlain, 
55  Fed.  706;  Cakes  v.  Myers,  68  Fed,  807;  contra,  Central  Trust  Co. 
V.  Wabash  etc.  Co.,  26  Fed.  11.  For  state  courts  following  the  same 
rule,  see  Cleveland  v.  McCravy,  46  S.  C.  252,  24  S.  E.  175;  Weaver 
V.  Duncan  (Teun.  Ch.  App.),  56  S.  W.  39. 

106  In  re  Tyler,  siiitra;  Ex  parte  Chamberlain,  55  Fed.  706;  Oakes 
V.  Myers,  68  Fed.  807;  Burleigh  v.  Chehalis  County,  75  Fed.  873,  34 
L.  R.  A.  393;  Clark  v.  McGhee,  87  Fed.  789,  31  C.  C.  A.  321;  Virginia, 
T.  &  C.  Co.  V.  Bristol  Land  Co.,  88  Fed.  134  (the  receiver  may  apply 
for  the  injunction  by  petition  in  the  original  suit). 

107  In  re  Tyler,  supra. 

108  Virginia,  T.  &  C.  Co.  v.  Bristol  Land  Co.,  88  Fed.  134. 

109  Burleigh  v.  Chehalis  County,  75  Fed.  873,  34  L.  E,  A.  393. 

110  In  re  Tyler,  supra.  See  Ex  parte  Chamberlain,  55  Fed.  704- 
706,  stating:  "There  can  be  no  doubt  that  property  in  the  hands  of 
a  receiver  of  any  court,  either  of  a  state  or  of  the  United  States,  is 
as  much  bound  for  the  payment  of  taxes,  state,  county  and  municipal, 
as  any  other  property.  Persons  cannot,  by  coming  into  this  court, 
and,  for  the  promotion  of  their  interests,  applying  for  and  obtaining 
the  appointment  of  receivers,  obtain  exemption  from  the  paramount 
duty  of  a  citizen.  For  this  reason,  receivers  in  this  district  pay  all 
just  and  lawful  taxes  without  asking  or  needing  the  sanction  of  the 
court,  and  in  their  accounts  such  payments  are  passed  without  ques- 
tion. But,  on  the  other  hand,  receivers  are  not  bound  to  pay  a  tax 
in  their  judgment  unlawful,  without  the  order  of  the  court;  and  when 
they  consider  the  legality  of  the  tax  questionable  it  is  their  right — 
their  manifest  duty — to  apply  to  the  court  either  for  instruction  or- 

Equitable  Remedies^  Vol.  1—21 


§  169  EQUITABLE    EEMEDIES.  S22 

and  proper  course  pursued  by  the  tax  officer  is  by  inter- 
vention in  the  receivership  suit.'^^ 

§  169.  Other  Forms  of  Interference;  Strikes;  Arrest;  etc. — 
Conspiracies  by  striking  workmen  to  interfere  with  the 
operation  of  railroads  in  the  hands  of  receivers  have 
been  the  subject  of  much  adjudication  within  recent 
years.  While  this  subject  may  more  appropriately  be 
taken  up  in  another  connection,  the  rule  should  here  be 
noted  that  any  willful  attempt  by  anyone,  with  knowl- 
edge that  the  road  is  in  the  hands  of  the  court,  to  pre- 
vent or  impede  the  receiver  from  complying  with  the 
order  of  the  court  in  running  the  road,  when  the  at- 
tempt is  unlawful,  and  as  between  private  individuals 
would  give  a  right  of  action  for  damages,  is  a  contempt 
of  the  order  of  the  court ^^^ 

Immunity  from  arrest  is  extended  to  the  receiver  for 
acts  done  in  discharge  of  the  duties  imposed  upon  him 
by  the  court,  though  not  for  acts  done  in  violation  of 

protection.  Especially  is  this  the  case  when  the  question  arises  be- 
tween the  receiver  and  persons  in  the  state,  county,  and  municipal 
government  aa  to  the  proper  construction  to  be  given  to  the  law, 
upon  which  individuals  may  well  differ,  and  it  is  his  right  and  mani- 
fest duty  to  go  to  the  court,  whose  creature  he  is,  for  instruction. 
He  [the  receiver]  therefore  pursued  the  proper  course  when  he  came 
in  by  this  petition."  See,  also,  to  the  same  effect,  Lamkin  v.  Bald- 
win etc.  Co.,  72  Conn.  59,  43  Atl.  593,  44  L.  R.  A.  786;  Greeley  v. 
Provident  Sav.  Bank,  98  Mo.  458,  11  S.  W.  980. 

111  In  re  Tyler,  supra;  Spalding  v.  Commonwealth,  88  Ky.  135,  10 
S.  W.  420  (the  court  may  grant  leave  to  sue  the  receiver  in  such 
case);  Weaver  v.  Duncan  (Tenn.  Ch.  App.),  56  S.  W.  39  (same). 

112  Thomas  v.  Cincinnati,  N,  O.  &  T.  P.  Ry,  Co.,  62  Fed.  803,  per 
Taft,  Cir.  J.;  Secor  v.  Eailroad  Co.,  7  Biss.  513,  Fed.  Cas.  No.  12,605; 
In  re  Doolittle,  23  Fed.  544;  United  States  v.  Kane,  23  Fed.  748;  In 
re  Wabash  E.  Co.,  24  Fed.  217;  In  re  Higgins,  27  Fed.  443;  Beers 
v.  Wabash,  St.  L.  &  P.  E.  Co.,  34  Fed.  244;  In  re  Acker,  66  Fed.  290. 
On  the  general  subject  of  injunctions  in  strike  cases,  see  post,  chap- 
ter XXVIII. 


323  THE  EECEIVEE'S  POSSESSION.  i  ia» 

the  ordinary  criminal  statutes  of  a  state.**'  Distrain- 
ing for  rent  upon  property  in  the  receiver's  possession, 
without  leave;***  searching  premises  in  his  possession 
without  a  warrant,  and  seizing  goods  therein  ;**°  and 
removing  a  building  from  the  premises**^ — clearly  con- 
stitute acts  of  contempt.  It  is  held,  in  England,  that 
a  libel  on  the  business  conducted  by  a  receiver  and  man- 
ager amounts  to  a  contempt,  in  a  case  where  a  former 
clerk  of  the  firm  sent  around  a  circular  to  the  custom- 
ers of  the  firm,  containing  an  unfair  statement  of  the 
effect  of  the  order  appointing  the  receiver,  and  solicit- 
ing their  custom  for  his  own  business.**'^ 

It  has  been  held,  following  the  analogy  of  the  cases 
concerning  execution  sales  of  lands  and  other  property 
in  the  receiver's  hands,  that  the  sale  of  such  lands  un- 
der a  power  in  a  trust  deed  which  is  a  first  lien  thereon 
is  void,  even  though  it  was  error  for  the  court  not  to 
permit  such  sale.**^  But  those  cases  do  not  apply  to 
prevent  a  sale  of  property  of  which  the  receiver  had  no 
possession  or  right  of  possession,  as  where  a  corpora- 
tion contracted  to  purchase  certain  personal  property, 
and  afterwards  refused  to  take  and  pay  for  it  according 
to  the  contract,  and  the  vendor,  after  the  subsequent 
appointment  of  a  receiver  of  the  corporation,  and  upon 
notice  to  him,  elected  to  sell  the  property  and  hold  him 
for  the  balance.*** 

113  United  States  v.  Murphy,  44  Fed.  39,  holding  arrest  a  con- 
tempt. 

114  Noe  V.  Gibson,  7  Paige,  513. 

115  In  re  Swan,  150  U.  S.  637,  14  Sup.  Ct.  225,  37  L.  ed.  1207. 

116  Delozier  v.  Bird,  123  N,  C.  689,  31  S.  E.  834. 

117  Helmore  v.  Smith,  35  Ch.  D.  449.  Also,  tampering  with  the 
receiver's  employees  and  inducing  them  to  join  a  rival  business  was 
restrained  by  injunction  in  Dixon  v.  Dixon,   [1904]     1  Ch.  161. 

118  Scott  V.  Crawford,  16  Tex.  Civ,  App.  477,  41  S.  W.  697. 

119  The  receiver  "had  only  the  right  to  receive  the  property  pur- 
chased by  the  corporation  upon  paying  the  agreed  price.    No  fund  or 


§170  EQUITABLE   EEMEDIES.  '    324 

§  170.  Conflicting  Appointments  of  Receivers. — It  often 
happens  that  proceedings  looking  toward  the  appoint- 
ment of  receivers  are  instituted  in  courts  having  the 
same  territorial  jurisdiction,  existing  side  by  side.  Ex- 
amples of  courts  having  concurrent  territorial  juris- 
diction are  the  courts  of  the  state  and  the  courts  of  the 
United  States  within  the  district;  or  the  courts  of  dif- 
ferent counties  or  judicial  districts  in  the  state  whose 
territorial  jurisdiction  extends  throughout  the  state. 
In  such  cases  considerable  confusion  and  diversity  of 
opinion  have  existed  among  different  courts  as  to  the 
principles  which  should  control.  The  following  results 
are  probably  sustained  by  the  better  reasoning  and  au- 
thority :  1.  Where,  in  the  first  proceeding,  the  court  has 
actually  got  possession  through  its  receiver  or  other  pro- 
cess in  rem  of  the  thing  before  the  second  proceedings 
are  begun,  that  possession  will  not  be  disturbed  by  the 
second  court.^^^  2.  Where  the  first  proceeding  is  an 
in  rem  proceeding  or  is  in  the  nature  of  a  proceeding 
in  rem,  though  that  court  has  not  yet  actually  seized 
the  property,  the  first  court  will  retain  exclusive  juris- 

property  that  had  passed  into  the  hands  of  the  receiver  was  attempted 
to  be  disposed  of  or  sold":  Moore  v.  Potter,  155  N.  Y.  481,  63  Am. 
St.  Rep.  692,  50  N.  E.  271. 

120  Baltimore  &  O.  E.  E.  v.  Wabash  E.  E.  Co.,  119  Fed.  678;  Merritt 
V.  American  Steel  Barge  Co.,  79  Eed.  228,  24  C.  C.  A.  530;  Knott  v. 
Evening  Post  Co.,  124  Fed.  342;  Gaylord  v.  Fort  Wayne  etc.  E.  R. 
Co.,  6  Biss.  286,  Fed.  Cas.  No.  5284;  Shields  v.  Coleman,  157  U.  S. 
168,  15  Sup.  Ct.  570,  39  L.  ed.  660;  Moran  v.  Sturgis,  154  U.  S.  256, 
14  Sup.  Ct.  1019,  38  L.  ed.  981,  citing  many  authorities;  Byers  v.  Mc- 
Auley,  149  U.  S.  608,  13  Si^p.  Ct.  906,  37  L.  ed.  367;  Taylor  v.  Carryl, 
20  How.  583,  15  L.  ed.  1028,  a  leading  case;  Buck  v.  Colbath,  3  Wall. 
334,  18  L.  ed.  257.  In  Heidritter  v.  Elizabeth  Oil  Cloth  Co.,  112  U.  S. 
294,  305,  5  Sup.  Ct.  135,  28  L.  ed.  729,  the  court  says:  "Where  the 
object  of  the  action  requires  the  control  and  dominion  of  the  prop- 
erty involved  in  the  litigation,  that  court  which  first  acquires  posses- 
Bion,  or  that  dominion  which  is  equivalent,  draws  to  itself  the  exclu- 
Bive  right  to  dispose  of  it  for  the  purposes  of  its  jurisdiction."  See, 
also,  Pulliam  v.  Osborne,  17  How.  471,  15  li.  ed.  154. 


325  KECEIVERS,-     CONFLICTING     APPOINTMENTS.       9  170 

diction.^21  Jq  i\^{^  connection,  however,  difficult  ques- 
tions arise  as  to  when  the  proceeding  is  or  becomes  in 
the  nature  of  an  in  rem  proceeding.  Thus,  take  the  or- 
dinary case  of  a  foreclosure  proceeding,  say,  of  a  rail- 
road ,  where  the  bill  asks  the  final  relief  of  sale  and  the 
intermediate  relief  of  a  receiver  pendente  lite.  Of 
course  such  a  proceeding  is  not  strictly  an  in  rem  pro- 
ceeding, because  the  element  of  notice  to  all  the  world 
is  absent,  yet  it  is  plain  that  the  ultimate  purpose  of 
the  suit  is  a  change  in  title  and  that  as  soon  at  least  as 
possession  is  rightfully  taken,  the  proceeding  begins 
to  assume  many  of  the  characteristics  of  an  in  rem  pro- 
ceeding. At  what  particular  point  shall  we  say  the 
proceeding  partakes  of  this  character?  Some  courts 
say  (a)  that  the  in  rem  character  attaches  to  the  pro- 
ceeding from  the  time  of  filing  the  bill;^^^  (b)  others, 
from  the  time  of  any  order  in  the  proceeding  indicating 
that  the  court  has  taken  jurisdiction  of  the  case,  especi- 
ally if  such  order  affects  possession,  as  e.  g.,  where  the 
subpoena  contains  a  restraining  order  ;^2^  (c)  other 
cases  consider  that  jurisdiction  of  the  res  attaches  at 
the  date  of  service  of  subpoena,  from  which  time,  un- 
der the  chancery  practice,  subsequent  purchasers  are 

121  Farmers'  Loan  and  Trust  Co.  v.  Lake  Street  Elevated  E.  E. 
Co.,  177  U.  S.  51,  20  Sup.  Ct.  564,  44  L.  ed.  667;  Guaranty  T.  Co.  v. 
North  Chicago  St.  E.  Co.,  130  Fed.  801;  Knott  v.  Evening  Post  Co., 
124  Fed.  342;  In  re  Schuyler's  Steam  Tow-Boat  Co.,  136  N.  Y.  169,  32 
N.  E.  623,  20  L.  E.  A.  391,  and  note;  In  re  Christian  Jensen  Co.,  128 
N.  Y.  550,  28  N.  E.  665;  Eogers  &  Baldwin  Co.  v.  Cleveland  Building 
Co.,  132  Mo.  442,  53  Am.  St.  Eep.  494,  34  S.  W.  57,  31  L.  E.  A-  335; 
Kurtz  V.  Phila.  etc.  E.  E.  Co.,  187  Pa.  St.  59,  40  Atl.  988. 

122  Gaylerd  v.  Fort  Wayne  M.  &  C.  E.  Co.,  6  Biss.  286,  Fed,  Caa. 
No.  5284. 

123  Appleton  Water  Co.  v.  Central  T.  Co.,  93  Fed.  286,  35  C.  C.  A. 
302:  "The  entry  of  an  order  upon  filing  of  the  bill  for  any  purpose 
involved  in  the  action,  and  especially  one  tending  to  the  possession 
by  the  court  of  the  res." 


{  170  EQUITABLE   REMEDIES.  326 

affected  with  notice  j^^*  (d)  other  cases  hold  that  the 
court  making  the  first  appointment  of  a  receiver  shall 
have  exclusive  jurisdiction  of  the  res/^s  ^^^  while  still 
another  view  insists  on  the  test  of  actual  seizure  in  all 
cases.^-*^  A  final  view  holds,  (f)  as  between  the  im- 
mediate parties,  that  the  exclusive  jurisdiction  attaches 
from  the  time  of  filing  the  bill.^"     jt  would  seem,  in 

124  Wilmer  v.  Atlanta  etc.  E.  Co.,  2  Wood,  409,  Fed.  Caa.  No.  17,775 
(opinion  of  Woods,  C.  J.);  Adams  v.  Mercantile  Trust  Co.,  66  Fed. 
•21,  15  C.  C.  A.  1;  Illinois  Steel  Co.  t.  Putnam,  68  Fed,  515,  15  C.  C. 

A.  556;  Farmers'  Loan  &  Trust  Co.  v.  Lake  Street  Elev.  E.  E.  Co., 
177  U.  S.  51,  61,  20  Sup.  Ct.  564,  44  L.  ed.  667;  Haughwout  v.  Murphy, 
22  N.  J.  Eq.  536,  545;  Gluck  &  Becker  on  Eeceivers,  2d  ed.,  99;  Bell 
T.  Ohio  L.  &  T.  Co.,  1  Biss.  260,  Fed.  Caa.  No.  1260. 

125  In  re  Schuyler's  Steam  Tow-Boat  Co.,  136  N.  T.  169,  32  N.  E. 
i23,  20  L,  E.  A.  391;  In  re  Christian  Jensen  Co.,  128  N.  Y.  550,  28 
N.  E.  665. 

126  Bradley,  C.  J.,  in  Wilmer  v.  Atlanta  etc.  Co.,  2  Wood,  410,  Fed. 
Cas.  No.  17,775;  Thompson  on  Corporations,  $  6855;  East  Tenn.  etc. 

B.  Co.  V.  Atlanta  etc.  E.  Co.,  49  Fed.  608,  15  L.  E.  A.  109;  Knott  v. 
Evening  Post  Co.,  124  Fed.  342. 

127  Farmers'  Loan  &  Trust  Co.  ▼.  Lake  Street  Elev.  E.  E.  Co.,  177 
U.  8.  48,  60,  20  Sup.  Ct.  564,  44  L.  ed.  667.  In  this  caa©  the  bill  was 
illed  first  in  the  federal  court  praying  foreclosure,  but  before  ser- 
vice, a  summons  was  served  in  an  action  in  the  state  court  begun  by 
defendant  to  restrain  plaintiff  from  proceeding  to  foreclose,  alleging 
•onspiracy,  etc.  The  court  said:  *'As  between  the  irnmediate  parties 
im.  a  proceeding  in  rem,  jurisdiction  must  be  regarded  aa  attaching 
when  the  bill  is  filed  and  process  has  been  issued."  Cf.  United  States 
V.  Supervisors  of  Johnson  Co.,  7  Wall.  196.  It  will  be  noted  that 
in  many  of  the  cases,  priority  is  determined  by  a  small  fraction  of 
a  day:  East  Tennessee  etc.  E.  Co.  v.  Atlanta  etc.  E.  Co.,  49  Fed.  608, 15 
L.  E.  A.  109;  North  v.  Piedmont  Bank  of  Morganton,  121  N.  C.  343, 
28  S.  E.  488.  In  New  York  Security  &  T.  Co.  v.  Saratoga  G.  &  E,  L. 
Co.,  159  N.  Y.  137,  45  L.  E.  A.  132,  53  N.  K  758,  a  receiver  in  seques- 
tration proceedings  and  a  receiver  in  foreclosure  proceedings  were 
appointed  "at  the  same  instant  of  time."  The  question  involved 
was  which  receiver  was  entitled  to  certain  income  of  the  company, 
the  foreclosure  receiver  claiming  under  a  clause  in  the  mortgage  mak- 
ing such  income  subject  to  the  lien  thereof.  The  court  holds  that 
ihe  lien  of  the  mortgage,  bo  far  as  concerns  future  earnings,  is  con- 
nLmmated  only  by  taking  possession,  and  there  can  be  no  retroactive 


3S7  EECEIVEBS;     CONFLICTING     APPOINTMENTS.       S  170 

the  absence  of  authority,  that  the  question  should  be 
governed  by  the  principles  regarding  notice,^ ^^  in  which 
event  only  those  dealing  with  the  property  after  service 
of  subpoena  would  have  constructive  notice  of  the  bill, 
and  this  is  probably  the  prevailing  rule.  3.  Where  the 
first  proceeding  is  not  in  rem  in  its  nature,  and  the 
effect  of  the  proceeding  will  not  be  to  disturb  the  title 
of  the  res,  a  receiver  may  be  appointed  of  the  entire 
property,  notwithstanding  the  pendency  of  the  prior 
proceeding.  For  example,  a  receiver  is  sought  to  man- 
age the  affairs  of  an  insolvent  corporation  until  such 
time  as  the  corporation  itself  can  pay  its  debts  and  re- 
sume the  management  of  its  property;  there  is  no  rea- 
son why  a  receiver  should  not  be  appointed  in  proceed- 
ings which,  though  subsequently  begun,  have  as  their 
object  the  final  disposition  of  the  property.^^^  This 
important  distinction  between  proceedings  in  the  na- 
ture of  proceedings  in  rem   and  other  proceedings  has 

operation  given  to  his  possession  so  as  to  defeat  the  title  which  the 
receiver  in  the  sequestration  proceedings  obtained  by  the  order  of  ap- 
pointment. 

128  Conner  v.  Long,  104  U.  S.  229,  26  L.  ed.  723;  Freeman  v.  Howe, 
24  How.  450,  16  L.  ed.  749. 

129  In  Shields  v.  Coleman,  157  U.  S.  168,  15  Sup.  Ct.  570,  4  L.  ed. 
660,  Brown,  J,,  says:  "The  mere  fact  that,  in  the  progress  of  an  at- 
tachment or  other  like  action,  an  exigency  may  arise,  which  calls 
for  the  appointment  of  a  receiver,  does  not  make  the  jurisdiction  of 
the  court  in  that  respect  relate  back  to  the  commencement  of  the  ac- 
tion." See,  also.  Guaranty  T.  Co.  v.  North  Chicago  St,  R.  Co.,  130 
Fed.  801,  65  C.  C.  A.  65;  Illinois  Steel  Co.  v.  Putnam,  68  Fed.  515, 
15  C.  C.  A.  556,  holding  that  the  filing  of  a  bill  for  the  appointment 
of  a  receiver  of  an  insolvent  corporation  to  take  charge  of  the  as- 
sets until  the  corporation  shall  pay  its  debts  or  resume  control  is  not 
Kuch  taking  in  gremio  legis  as  to  preclude  another  court  from  ap- 
pointing a  receiver.  See,  also,  De  la  Vergne  v.  Palmetto  Brewing  Co., 
72  Fed.  579.  An  instructive  discussion  of  the  nature  of  an  in  rem 
seizure  will  be  found  in  First  National  Bank  of  Oswego  v.  Dunn,  97 
N.  Y,  149,  where  it  is  held  that  property  held  by  the  sheriff  under 
a  writ  of  replevin  is  in  custodia  leffis,  while  property  held  on  execu- 
tion is  not. 


5  170  EQUITABLE   REMEDIES.  328 

often  been  overlooked,  and  the  determination  of  the  im- 
portant question  arising  from  different  appointments 
by  courts  of  concurrent  jurisdiction  has  erroneously 
been  made  to  depend  on  the  test:  which  court  has  first 
obtained  jurisdiction  of  the  controversy^^" — and  not  on 
the  true  test:  which  court  has  first  obtained  jurisdic- 
tion of  the  res.  Many  of  the  courts  have  founded  their 
decisions,  properly  yielding  jurisdiction  to  the  courts 
■\^hich  had  first  obtained  jurisdiction,  upon  the  ground 
of  comity,  when  in  fact  they  had  better  have  been  rested 
upon  the  basis  that  the  second  court  had  no  jurisdic- 
tion of  the  res  because  some  other  tribunal  already  had 
it.^^^  One  of  the  earlier  cases  in  the  United  States  su- 
preme court  shows  the  true  extent  of  the  principle, 
holding  a  sale  made  under  an  execution  at  law  void, 
where  the  property  was  in  the  custody  of  a  receiver  ap- 
pointed by  the  state  court  in  a  suit  in  chancery.^ ^^ 

130  The  test  is,  for  example,  incorrectly  stated  in  23  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.,  p.  1112. 

131  That  the  rule  is  not  a  mere  rule  of  comity  but  a  question  of 
jurisdiction,  see  Dillon  v.  O.  S.  L.  etc.  By.  Co.,  66  Fed.  622;  Baltimore 

6  O.  E.  E.  Co.  V.  Wahash  E.  E.  Co.,  119  Fed.  678,  57  C.  C.  A.  322;  Mer- 
ritt  V.  American  Steel  Barge  Co.,  79  Fed.  226,  24  C.  C.  A.  530;  Covell 
V.  Heyman,  111  U.  S.  176,  4  Sup.  Ct.  355,  28  L.  ed.  390.  Some  au- 
thorities say  the  rule  is  one  of  comity:  Gaylord  v.  Fort  Wayne  etc. 
E.  Co.,  6  Biss.  286.,  Fed.  Cas.  No.  5284;  De  la  Vergne  v.  Palmetto 
Brewing  Co.,  72  Fed.  579. 

132  Wiswall  V.  Sampson,  14  How.  52,  14  L.  ed.  322.     See  ayite,  §§ 
166,   167. 


329  ACTIONS  AGAINST  THE  KECEIVER,  i  171 


CHAPTER  V. 


171- 
§ 

-179. 
171. 

§ 

s 

172. 
173. 

§ 

174. 

§ 

175. 

§ 

§ 
s 

176. 

177. 
178. 
179. 

ACTIONS  AGAINST  THE  RECEIVER. 

ANALYSIS. 

IS  171-179.     Actions   against   the   receiver. 

General  rule;  leave  must  be  obtained  from  the  appoint- 
ing court. 

Whether  leave  to  sue  is  a  "jurisdictional  fact." 

Suits  against  federal  receivers;  rule  now  modified  br 
act  of  Congress. 

Same;  such  suits  are  "subject  to  the  general  equity- 
jurisdiction"  of  the  court  of  the  appointment. 

Leave  of  court  not  necessary  where  receiver  is  a  tres- 
passer. 

Leave  to  sue  receiver,  when  granted. 

Practice;  whether  by  petition  or  independent  action. 

Eeceiver's  riglit  to   appeal. 

Judgment  against  receiver,  how  enforced;  as  against 
successor  in  office;  in  case  of  his  discharge. 

§  171.  Actions  Against  Receiver — General  Rule;  Leave 
must  be  Obtained  from  Appointing  Court. — It  is  a  well-estab- 
lished rule  that  before  suit  is  brought  against  a  re- 
ceiver in  his  official  capacity,  leave  should  be  obtained 
from  the  court  by  which  he  was  appointed,^  in  the  ab- 

1  See  the  following,  among  a  multitude  of  cases:  Searle  v.  Cboate, 
25  Ch.  D.  723  (suit  to  restrain  receiver  from  preventing  payment 
of  rents  by  tenants);  Barton  v.  Barbour,  104  U.  S.  126,  26  L.  ed. 
673;  affirming  s.  c,  3  McAr.  212,  36  Am.  Rep.  104;  Porter  v.  Sabia, 
149  U.  S.  473,  13  Sup.  Ct.  1008,  37  L.  ed.  815;  People's  Bank  v.  Cal- 
houn, 102  U.  S.  256,  26  L.  ed.  101;  Thompson  v.  Scott,  4  Dill.  508, 
Fed.  Cas.  No.  13,975;  Werner  v.  Murphy,  60  Fed.  769;  Foreman  v. 
Central  Trust  Co.,  71  Fed.  776,  18  C.  C.  A.  321;  Louisville  Trust  Co. 
T.  Cincinnati,  76  Fed.  296,  22  C.  C.  A.  334;  Stateler  v.  California  Nat. 
Bank,  77  Fed.  43;  Jones  v.  Schlapback,  81  Fed.  274;  Eoss  v.  Heck- 
man,  84  Fed.  6;  Eidge  v.  Manker  (C.  C.  A.),  132  Fed.  599;  Minot  v. 
Mastin,  95  Fed.  734,  37  C.  C.  A.  234;  Talladega  Mercantile  Co.  v. 
Jenifer  Iron  Co.,  102  Ala.  259,  14  South.  743;  Southern  Granite  Co. 


i  171  EQUITABLE   BEMEDIES.  830 

sence  of  statutes  authorizing  suits  without  such  leave. 
It  is  generally  agreed  that  the  rule  applies  not  only 
to  suits  the  object  of  which  is  to  take  from  his  posses- 
sion property  which  he  is  holding  by  order  of  the  court, 
but  also  to  suits  brought  against  him  to  recover  a  money 
demand  or  damages.^     The  reasons  for  the  rule  have 

T.  Wadsworth,  115  Ala.  570,  22  South.  157;  Montgomery  v.  Enslen^ 
126  Ala.  654,  28  South.  626;  Links  v.  Connecticut  Eiver  Bkg,  Co.,  66 
Conn.  277,  33  Atl.  1003;  De  Graff enried  v.  Brunswick  etc.  E.  B.  Co., 
§7  Ga.  22;  Fort  Wayne,  M.  &  C.  R.  Co.  v.  Mellett,  92  Ind,  535  (eject- 
ment); Keen  v.  Breckenridge,  96  Ind.  69;  Wayne  Pike  Co.  v.  State, 
134  Ind.  672,  34  N.  E.  440;  Meredith  Village  Sav.  Bank  v.  Simpson, 
22  Kan.  414;  People  ex  rel.  Tremper  v.  Brooks,  40  Mich.  333,  29  Am. 
Rep.  534;  Burk  v.  Muskegon  Mach.  &  F.  Co.,  98  Mich.  614,  57  N.  W. 
804;  Citizens'  Com.  &  Sav.  Bank  v.  Bay  Circuit  Judge,  110  Mich. 
C33,  68  N.  W.  649;  Wade  v.  Eingo,  62  Mo.  App.  414  (leave  of  court 
obtained  in  vacation) ;  In  re  Commercial  Bank,  35  App.  Div.  224, 
64  N.  Y.  Supp,  722  (from  what  court  leave  must  be  obtained,  under 
the  New  York  Code);  Payne  v.  Baxter,  2  Tenn.  Ch.  517;  Melendy  v. 
Barbour,  78  Va.  544;  Jones  v.  Browse,  32  W.  Va.  444,  9  S.  E.  873; 
and  other  cases  in  the  notes  to  this  and  the  following  sections. 
See,  also,  on  the  general  subject,  monographic  note,  Malott  v.  Shimer, 
74  Am.  St.  Rep.  285-300. 

It  is  held  not  to  be  essential  to  the  validity  of  an  order  granting 
leave  to  bring  an  action  against  a  receiver,  that  notice  of  the  appli- 
cation for  the  order  should  be  given  to  the  parties  in  the  case  in 
which  the  receiver  was  appointed.  Notice  of  such  application  to  th© 
receiver  is  sufficient:  Potter  v.  Bunnell,  20  Ohio  St.  150. 

The  general  principle  of  the  text  is  held  not  to  apply  to  a  suit 
in  a  federal  court  by  the  owner  of  a  patent  to  restrain  its  infringe- 
ment by  a  receiver  of  a  state  court,  since  the  federal  courts  have 
exclusive  jurisdiction  to  determine  questions  as  to  the  validity  and 
infringement  of  patents:  Hupfeld  v.  Automaton  Piano  Co.,  66  Fed. 
788. 

In  Eatcliff  v.  Adler,  71  Ark.  269,  72  S.  W.  896,  it  was  held  that 
an  appellate  court  will  not  reverse  a  judgment  because  consent  was 
»ot  obtained,  when  rendered  by  the  same  court  and  the  same  judge 
that  has  charge  of  the  receivership  proceedings. 

2  For  example,  to  suits  against  railroad  receivers  to  recover  dam- 
ages for  injuries  received  at  the  hands  of  the  receiver's  servants, 
or  on  other  liabilities  incurred  by  the  receiver;  see  Barton  v.  Bar- 
bour, 104  U.  S.  126,  26  L.  ed.  673,  affirming  3  McAr.  212,  36  Am.  Eep. 
104;   Thompson   v.   Scott,  4   Dill.   508,   Fed.   Cas.   No.   13,975    (an   in- 


331  ACTIONS  AGAINST  THE  KECEIVER.  I   171 

been  thus  stated:  "One  court  having  custody  of  prop- 
erty through  its  receiver  cannot  admit  that  another 
court,  in  defiance  of  its  orders,  has  power  to  define 
what  are  his  duties  with  reference  to  such  property. 
To  admit  this  is  substantially  to  say  that  one  co-ordi- 
nate court  can  sue  another Every  consideration 

of  economy,  of  the  prevention  of  vexatious  litigation 
and  conflicts  of  jurisdiction,  would  indicate  the  impor- 
tiince  of  protecting  the  exclusive  possession  of  the  re- 
ceiver by  an  inflexible  rule  of  law."^  It  is  argued  that 
if  judgments  in  such  suits  be  invalid,  no  purpose  can 
be  effected  thereby  save  the  embarrassment  of  the  re- 
ceiver by  expensive  and  useless  litigation;  that  the 
judgments,  even  if  repudiated,  would  cast  a  cloud  upon 
the  title  to  the  property  in  the  receiver's  possession  and 
prejudice  its  sale;  while  if  their  validity  be  recognized, 
the  court  of  appointment  would  sit  merely  to  register 
and  pay  the  judgments  and  decrees  of  other  courts.* 

Btructive  opinion);  Jones  v.  Schlapback,  81  Fed.  274;  De  Graffenried 
T.  Brunswick  etc.  E.  R.,  57  Ga.  22;  Payne  v.  Baxter,  2  Tenn.  Ch.  517; 
Melendy  v.  Barbour,  78  Va.  544.  The  objections  to  the  doctrine,  as 
applied  to  suits  upon  liabilities  incurred  by  railroad  receivers,  are 
Ftated  with  great  force  in  the  dissenting  opinion  of  Miller,  J.,  in 
Barton  v.  Barbour,  supra. 

»  Meredith  Village  Sav.  Bank  v.  Simpson,  22  Kan.  414,  per  Horton, 

C.  J. 

4  Thompson  v.  Scott,  4  Dill.  508,  Fed.  Gas.  No.  13,975,  per  Love, 

D.  J.  The  opinion  is  so  vigorous  a  presentation  of  what  has  come 
to  be  the  generally  accepted  rule,  that  I  venture  to  quote  from  it  at 
some  length:  "Such  judgment  against  the  receiver  would  be  either 
▼alid  or  invalid.  If  invalid,  it  follows  that  suits  against  the  receiver, 
resulting  in  such  judgments,  would  be  perfectly  futile  and  useless, 
and  for  that  reason  they  ought  to  be  stopped  by  the  receiver's  court; 
for  certainly  such  suits  would  harass  and  embarrass  the  receiver, 
and  expose  him  to  the  heavy  costs  of  litigation;  and,  if  they  resulted 
in  no  benefit  to  the  parties  prosecuting  them,  it  would  be  simply 
idle,  if  not  absurd,  to  allow  such  actions  to  proceed  against  the  re- 
ceiver. But,  doubtless,  if  the  doctrine  of  the  Iowa  court  [Allen  v. 
Central  B.   Co.,   42   Iowa,  683]   be  sound,  judgments   against   the   re- 


{   171  EQUITAJJLE    KE:>il:;UlES.  332 

In  the  loading  case  upon  the  subject  it  is  said:  "If  he 
[the  plaintiff  in  a  suit  against  the  receiver]  has  the 
right,  in  a  distinct  suit,  to  prosecute  his  demand  to 
judgment  without  leave  of  the  court  appointing  the  re- 
ceiver, he  would  have  the  right  to  enforce  satisfaction 
of  it  without  leave.  By  virtue  of  his  judgment  he  could, 
unless  restrained  by  injunction,  seize  upon  the  prop- 
erty of  the  trust  or  attach  its  credits.  If  his  judgment 
were  recovered  outside  the  territorial  jurisdiction  of 
the  court  by  which  the  receiver  was  appointed,  he  could 
do  this,  and  the  court  which  appointed  the  receiver  and 
was  administering  the  trust  assets  would  be  impotent 
to  restrain  him.  The  effect  upon  the  property  of  the 
trust  of  any  attempt  to  enforce  satisfaction  of  his  judg- 
ment would  be  precisely  the  same  as  if  his  suit  had  been 

ceiver  would  be  valid  to  all  intents  and  purposes,  and  they  must 
be  so  treated  by  all  courts  in  which  they  should  be  pleaded.  This 
being  the  case,  what  follows?  Why,  that  the  court  of  equity,  having 
control  of  the  fund,  would  have  no  alternative  but  to  recognize  and 
pay  the  judgments  and  decrees  rendered  elsewhere  against  its  re- 
ceiver, and  if  the  fund  consisted,  in  whole  or  in  part,  of  real  estate, 
the  judgments  against  the  receiver  would  become  liens  against  the 
property,  thus  encumbering  and  casting  a  cloud  upon  the  title.  Un- 
der such  conditions  the  sale  of  the  property,  under  the  decree  of  the 
court  of  equity,  to  satisfy  its  judgments,  would  be  hopeless  and  in- 
effectual. Thus  would  the  whole  purpose  of  the  litigation  in  equity 
and  of  the  taking  possession  of  property  through  the  receiver,  be 
utterly  defeated.  The  absurdity  of  such  a  result  requires  no  ex- 
planation  Again,  if  any  and  every  body  may  sue  our  receiver 

without  our  consent,  along  the  line  of  the  road,  innumerable  suits 
may  be  prosecuted  against  him,  and  he  may  be  thus  exposed  to 
the  costs  and  expenses  of  ruinous  litigation.  Now,  he  is  our  offi- 
cer, and  suits  would  be  prosecuted  against  him  as  such,  and  not 
against  him  as  an  individual.  We  have  placed  him  in  the  breach 
and  exposed  him  to  a  deadly  fire.  Shall  we  leave  him  naked  to  his 
enemies?  Shall  the  court  abandon  him  to  his  fate  and  compel  him 
to  pay  the  costs  and  charges  of  a  ruinous  litigation  out  of  his  own 
pocket?  Or,  if  the  court  should  authorize  him  to  employ  counsel  and 
pay  the  costs  of  numberless  suits  out  of  the  trust  fund,  what  then? 
Why,  it  would  follow  that  the  fund  in  our  hands  might  be  wasted 
and  squandered  in  useless  and  fruitless  litigation,"   etc. 


333  ACTIONS  AGAINST  THE  RECEIVEE.  S  171 

l)i()U<»ht  for  the  purpose  of  taking  property  from  the 
possession  of  the  receiver.  A  suit,  therefore,  brought 
without  leave  to  recover  judgment  against  a  receiver 
for  a  money  demand,  is  virtually  a  suit,  the  purpose 
of  which  is,  and  the  effect  of  which  may  be,  to  take 
the  property  of  the  trust  from  the  receiver's  hands  and 
apply  it  to  the  payment  of  the  plaintiff's  claim,  with- 
out regard  to  the  rights  of  other  creditors,  or  the  order 
of  the  court  which  is  administering  the  trust  property. 
Yv^e  think,  therefore,  that  it  is  immaterial  whether  the 
suit  is  brought  against  the  receiver  to  recover  specific 
property  or  to  obtain  judgment  for  a  money  demand. 
In  either  case  leave  should  be  first  obtained."^  The  ob- 
jection that,  by  leaving  all  questions  relating  to  the  lia- 
bility of  receivers  in  the  hands  of  the  court  appointing 
them,  persons  having  claims  against  the  insolvent  cor- 
poration or  against  the  receiver  will  be  deprived  of 
their  constitutional  right  to  a  trial  by  jury,  is  thus  met, 
in  the  same  case:  "Those  who  use  this  argument  lose 
sight  of  the  fundamental  principle  that  the  right  of 
trial  by  jury,  considered  as  an  absolute  right,  does  not 
extend  to  cases  of  equity  jurisdiction.  If  it  be  conceded 
or  clearly  shown  that  a  case  belongs  to  this  class,  the 
trial  of  questions  involved  in  it  belongs  to  the  court 
itself,  no  matter  what  may  be  its  importance  or  com- 
plexity."* 

The  consequences  resulting  from  the  prosecution  of  a 
suit  against  the  receiver  in  his  official  capacity  are,  that 
the  plaintiff  in  such  suit  may  be  attached  as  for  a  con- 
tempt,'^ or  restrained  by  an  injunction.^ 

6  Barton  v.  Barbour,  104  U.  S.  126,  26  L.  ed.  673,  per  Woods,  J. 
e  Barton  v,  Barbour,  104  U.  S.  126,  26  L,  ed.  673,  per  Woods,  J. 

7  Lane  v.  Capsey,  [1891]  3  Ch.  411;  Thompson  v.  Scott,  4  DUl.  508, 
Fod.  Cas.  No.  13,975. 

8  Evelyn  v.  Lewis,  3  Hare,  472;  Stateler  v.  California  Nat.  Bank, 
77  Fed.  43;  Jones  v.  Schlapback,  81  Fed.  274;  Montgomery  v.  Enslen, 
126  Ala.  654,  28  South.  626. 


1  172  EQUITABLE    KEMEDIE3.  334 

§  172.  Whether  leave  to  Sue  is  a  "Jurisdictional  Fact." 
It  is  the  rule  of  the  federal  courts,  unless  changed  by 
statute,  and  of  the  courts  of  many  of  the  states,  that 
leave  to  prosecute  a  suit  against  a  receiver,  in  his  official 
capacity,  without  the  consent  of  the  court  of  appoint- 
ment, is  a  jurisdictional  fact;  in  other  words,  that  want 
of  leave  not  only  subjects  the  plaintiff  to  liability  to  be 
attached  for  contempt,  or  to  be  enjoined  from  the  prose- 
cution of  his  suit,  but  takes  away  the  jurisdiction  of 
the  court  in  which  the  suit  was  brought  to  hear  and  de- 
termine it.  Such  leave  must,  therefore,  be  averred  in 
the  complaint.®  In  other  courts  this  rule  has  received 
most  earnest  disapproval,  both  on  the  grounds  of  policy 
and  convenience,  and  on  the  ground  that  it  ignores  and 
sets  aside  well-established  principles  governing  the  re- 
lations of  courts  of  law  to  courts  of  equity.  Says  Mr. 
Justice  Miller,  in  his  dissenting  opinion  in  the  leading 
case^"  already  cited:  "I  know  of  no  principle  nor  of 

9  Barton  v.  Barbour,  104  U.  S.  126,  26  L.  ed.  673,  affirming  3 
McAr.  212,  36  Am.  Eep.  104;  Swope  v.  Villard,  61  Fed.  417;  De 
Graffenried  v.  Brunswick  etc.  E.  R.,  57  Ga.  22;   Martin  v.  Atchison, 

2  Idaho,  624,  33  Pac.  47;  Keen  v.  Breckcnridge,  96  Ind.  69;  Wayne 
Pike  Co.  V.  State,  134  Ind.  672,  34  N.  E.  440;  Peirce  v.  Chism,  23 
Ind.  App.  505,  77  Am.  St.  Rep.  441,  55  N.  E.  795;  Peirce  v.  Jones, 
24  Ind.  App.  286,  56  N.  E.  683;  Manker  v.  Phoenix  Loan  Assn.  (Iowa), 
96  N.  W.  982;  Steel  Brick  Siding  Co.  v.  Muskegon  etc.  Co.,  98  Mich. 
616,  57  N.  W.  817;  Schmidt  v.  Gayner,  59  Minn.  303,  61  N.  W. 
333,  62  N.  W.  265;  Smith  v.  St.  Louis  &  S.  F.  Ey.  Co.,  151  Mo.  391, 
52  S.  W.  378,  48  L.  R.  A.  368;  Jones  v.  Moore,  106  Tenn.  188,  61  S. 
W.  81,  In  Brown  v.  Eauch,  1  Wash.  497,  20  Pac.  785,  a  decision  by 
a  territorial  court,  it  was  held  that  the  question  of  want  of  leave 
may  be  raised  for  the  first  time  even  upon  appeal  from  a  judgment 
against  the  receiver;  but  see  Elkhart  Car  Works  v.  Ellis,  113  Ind. 
215,  15  N.  E.  249  (objection  not  heard  upon  motion  in  arrest  of 
judgment).  It  has  been  held  in  a  recent  federal  case  that  a  decree 
against  a  receiver  will  not  be  held  void,  in  a  collateral  proceeding, 
for  failure  affirmatively  to  recite  that  leave  to  sue  was  obtained, 
when  the  receiver  appeared,  defended  upon  the  merits,  and  asked 
affirmative  relief:   Ridge  v.  Manker  (C.  C.  A.),  132  Fed.  599. 

10  Barton  v.  Barbour,  104  U.  S.  126,  26  L.  ed.  673.     The  reasoning 


335  ACTIONS  AGAINST  THE  RECEIVER.  S  172 

any  precedent  whereby  a  court  of  law,  having  before 
it  a  plaintiff  with  a  cause  of  action  of  which  that  court 
has  jurisdiction,  and  a  defendant  charged  in  regard  to 
his  own  act  also  within  the  jurisdiction,  is  bound  or 
is  even  at  liberty  to  deny  the  party  his  lawful  right  to 
a  trial  of  his  cause  because  the  defendant  is  receiver  of 
some  other  court,  and  to  leave  the  suitor  to  that  court 
for  remedy,  when  it  is  known  that  some  of  the  most 
important  guaranties  of  the  trial  to  which  he  is  en- 
titled and  which  are  appropriate  to  the  nature  of  his 
case  will  be  denied  him.  Whatever  courts  of  equity 
may  have  done  to  protect  their  receivers,  and  may  do 
to  protect  the  fund  in  their  hands,  it  is  no  part  of  the 
duty  of  courts  of  law  to  deny  to  suitors  properly  before 
them  the  trial  of  their  rights  which  justice  requires  and 
which  the  constitution  and  the  law  guarantee."  Bj 
many  courts,  therefore,  the  rule  is  laid  down  "that  the 
question  always  is,  not  one  of  jurisdiction,  but  of  con- 
tempt; that  the  ordinary  jurisdiction  of  other  courts 
is  in  no  manner  taken  away  or  affected  by  the  appoint- 
ment of  a  receiver;  that  while  the  court  making  the 
appointment  may  draw  to  itself  all  controversies  to 
which  the  receiver  is  a  party,  it  does  so  by  acting  di- 
rectly upon  the  parties,  and  not  by  challenging  the  ju- 
risdiction of  the  other  tribunals;  that  while  it  may 
so  draw  to  itself  all  such  controversies,  it  is  not  com- 
pelled to  do  so,  and  that  not  doing  so  in  any  particular 
case,  the  mere  fact  of  the  appointment  constitutes  no 
plea  to  the  jurisdiction.''^^     The  rule  as  thus  defined, 

of  the  learned  justice  who  rendered  the  opinion  of  the  court  in  this 
case  is  also  severely  criticised  in  Lyman  v.  Central  Vermont  R.  Co., 
59  Vt.  167,  10  Atl.  346. 

11  St.  Joseph  &  D.  C.  R.  R.  Co.  v.  Smith,  19  Kan.  225,  231,  per 
Brewer,  J.  (now  Mr.  Justice  Brewer  of  the  United  States  supreme 
court);  Mulcahey  v.  Strauss,  151  lU.  70,  37  N.  E.  702;  Flentham  v. 
Stewart,  45  Neb.  640,  63  N.  W.  924;  Hirshfeld  v.  Kalisher,  81  Hun, 


i  173  EQUITABLE   EEMEDIES.  336 

however,  appears  to  be  limited  to  cases  where  there  is 
no  attempt  to  interfere  with  the  actual  possession  of 
the  property  held  by  the  receiver;  ejectment  or  garnish- 
ment suits  against  the  receiver  without  leave  will  not 
be  entertxiined.^^  It  follows  from  the  rule  that  leave  to 
sue  the  receiver  is  not  jurisdictional,  that  the  receiver 
may  waive  the  defense  of  being  sued  without  leave  by 
a  voluntary  appearance  in  the  action  against  him.^* 

§  173.  Suits  Against  Federal  Receivers;  Rule  Now  Modi- 
fied by  Act  of  Congress. — The  general  rule  laid  down  in 
the  preceding  paragraphs  was  productive  of  great  hard- 
ship in  those  cases  where  parties  were  forced  to  sue 
receivers  whose  residence  was  in  a  jurisdiction  different 
from  that  where  the  cause  of  action  arose.  A  distin- 
guished and  able  federal  judge  has  said:  "Where  prop- 
erty is  in  the  hands  of  a  receiver  simply  as  a  custodian, 
or  for  sale  or  distribution,  it  is  proper  that  all  persons 
having  claims  against  it,  or  upon  the  fund  arising  from 
its  sale,  should  be  required  to  assert  them  in  the  court 
appointing  the  receiver.  But  a  very  different  question 
is  presented  where  the  court  assumes  the  operation  of 
a  railroad  hundreds  of  miles  in  length,  and  advertises 
itself  to  the  world  as  a  common  carrier.     This  brings 

606,  30  N.  Y,  Supp.  1027;  Le  Fevre  v.  Matthews,  39  App.  Div.  232, 
57  N.  Y.  Supp.  128;  Blumenthal  v.  Brainerd,  38  Vt.  402,  91  Am. 
Dec.  350;  Lyman  v.  Central  Vt.  E.  Co.,  59  Vt,  167,  10  Atl.  346;  Town 
of  Eoxbury  v.  Central  Vt.  E.  Co.,  60  Vt.  121,  14  Atl.  92;  Kinney  v. 
Crocker,  18  Wis.  74;  Colorado  Fuel  etc.  Co.  v.  Eio  Grande  S.  Ey. 
Co.,  8  Colo.  App.  493,  46  Pac.  845;  Payson  v.  Jacobs  (Wash.),  80 
Pac.  429. 

12  St.  Louis,  A.  &  S.  E.  Co.  v.  Hamilton,  158  111.  366,  41  N.  E. 
777  (ejectment);  Blum  v.  Van  Vechten,  92  Wis.  378,  66  N.  W.  507 
(garnishment). 

13  Mulcahey  v.  Strauss,  151  111.  70,  37  N.  E.  702;  Flentham  v. 
Stewart,  45  Neb.  640,  63  N.  W,  924;  Hubbell  v.  Dana,  9  How.  Pr. 
(N.  Y.)  424;  Jay's  Case,  6  Abb.  Pr.  (N.  Y.)  293;  and  see  Elkhart 
Car  Works  Co.  v.  Ellis,  113  Ind.  215,  15  N.  E.  249. 


337  ACTIONS  AGAINST  THE  RECEIVEE.  I  173 

it  into  constant  and  extensive  business  relations  with 

the  public All    the    liabilities    incident   to   the 

operation  of  a  railroad  are  incurred  by  a  court  where 
it  engages  in  that  business;  and,  when  they  are  in- 
curred, why  should  the  citizen  be  denied  the  right  to 
establish  the  justice  and  amount  of  his  demand,  by  the 
verdict  of  a  jury  in  a  court  of  the  county  where  the 
cause  of  action  arose  and  the  witnesses  reside?  If  the 
road  was  operated  by  its  owners  or  its  creditors,  the 
citizen  would  have  this  right,  and  when  it  is  operated 
for  their  benefit  by  a  receiver,  why  should  the  right  be 
denied ?"^^  To  remedy  this  condition,  and  save  expense 
to  those  suing  receivers,^  ^  section  3  of  the  act  of  Con-, 
gress  approved  March  3,  1887  (c.  373;  1  U.  S.  Comp. 
Stats.,  p.  582),  provides:  "That  every  receiver  or  man- 

14  Dowe  V.  Memphis  &  L.  K.  R.  Co.,  20  Fed.  260,  at  268,  by  Cald- 
well, J.,  who  continued:  "If  the  denial  of  the  right  to  sue  can  be 
rested  on  the  ground  that  it  saves  money  for  the  corporation  and 
its  creditors,  why  not  carry  the  doctrine  one  degree  further,  and 
declare  the  receiver  shall  not  be  liable  to  the  citizen  at  all  for 
breaches  of  contract,  or  any  act  of  malfeasance  or  misfeasance  in 
hi«  office  as  receiver!  This  would  be  a  great  saving  to  the  estate. 
The  difference  is  one  of  degree  and  not  of  principle.  When  a  court, 
through  its  receiver,  becomes  a  common  carrier,  and  enters  the  lists 
to  compete  with  other  common  carriers  for  the  carrying  trade  of  the 
country,  it  ought  not  to  claim  or  exercise  any  special  privilege  de- 
nied to  its  competitors,  and  oppressive  on  the  citizen.  The  court 
appointing  a  receiver  of  a  railroad  and  those  interested  in  the  prop- 
erty, should  be  content  with  the  same  measure  of  justice  that  is 
meted  out  to  all  persons  and  corporations  conducting  the  like  busi- 
ness. The  court  appointing  a  receiver  cannot,  of  course,  permit  any 
other  jurisdiction  to  interfere  with  its  possession  of  the  property, 
or  control  its  administration  of  the  fund;  but,  in  the  case  of  long 
lines  of  railroad,  the  question  of  the  legal  liability  of  its  receiver 
to  the  demands  of  the  citizen,  growing  out  of  the  operation  of  the 
road,  should  be  remitted  to  the  tribunals  that  would  have  jurisdic- 
tion if  the  controversy  had  arisen  between  the  citizen  and  the  rail- 
road company;  giving  to  the  citizen  the  option  of  seeking  redresa 
in  such  tribunals,  or  in  the  court  appointing  the  receiver." 

IB  Gilmore  v.  Herrick,  93  Fed.  525. 

Equitable  Remedies,  Vol.  I — 22 


I  173  EQUITABLE    REMEDIES.  338 

ager  of  any  property  appointed  by  any  court  of  the 
United  States  may  be  sued  in  respect  of  auy  act  or  trans- 
action of  his  in  carrying  on  the  business  connected  with 
such  property,  without  the  previous  leave  of  court  in 
which  such  receiver  or  manager  was  appointed;  but 
such  suit  shall  be  subject  to  the  general  equity  jurisdic- 
tion of  the  court  in  which  such  receiver  or  manager  was 
appointed,  so  far  as  the  same  shall  be  necessary  to  the 
ends  of  justice."^®  The  statute  has  been  applied  in  a 
number  of  cases,^'^  and  it  is  held  that  the  suit  may  be 
brought  in  any  court  of  competent  jurisdiction;^**  but 
the  suit  must  be  in  regard  to  some  "act  or  transaction" 
in  connection  with  the  operation  of  the  property,  and 
unless  this  is  strictly  true,  leave  of  court  should  be  ob- 
tained.^*    Under  guise  of  the  statute,  a  party  cannot 

16  The  act  was  revised  by  an  act  approved  August  13,  1888,  but 
was  not  materially  altered. 

17  See  the  following  cases  as  well  as  those  cited  in  the  succeeding 
notes:  Texus  &  Pac.  R.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup.  Ct.  905,  36 
L.  ed.  829;  Erb  v.  Morasch,  177  U.  S.  584,  20  Sup.  Ct.  819,  44  L.  ed. 
897;  The  St.  Nicholas,  49  Fed.  671;  Wheeler  v.  Smith,  81  Fed.  319 
(the  statute  extends  to  territorial  appointments,  for  the  court  in 
making  such  appointment  acts  as  a  federal  court);  Trumbull  v.  Mc- 
Kuser,  9  Colo.  App.  350,  48  Pac.  825;  Louisville  Southern  Ry.  Co.  v. 
Tucker's  Admr.,  105  Ky.  492,  49  S.  W.  314;  Southern  Pac.  R.  R.  v. 
Maddox,  75  Tex,  300,  12  S.  W.  815;  Houston  &  T.  C.  Ry.  Co.  v.  State 
(Tex.  Civ.  App.),  39  S.  W.  390  (a  suit,  at  the  direction  of  the  gov- 
ernor, to  determine  the  title  to  land  in  possession  of  a  federal  re- 
ceiver was  upheld  without  leave  of  court  having  been  obtained, 
without  an  express  reliance  on  the  statute) ;  Stolze  v.  Milwaukee  & 
L.  W.  R,  Co.,  104  Wis.  47,  80  N.  W.  68. 

18  McNulta  v.  Lochridge,  141  U.  S.  327,  12  Sup.  Ct.  11,  35  L.  ed. 
796;  Central  Trust  Co.  of  N.  Y.  v.  East  Tenn.  V.  &  G.  Ry.  Co.,  59 
Fed.   523. 

19  Central  Trust  Co.  of  N.  Y.  v.  East  Tenn.,  V.  &  G.  Ry.  Co.,  59 
Fed.  523;  Glover  v.  Thayer,  101  Ga.  824,  29  S.  E.  36.  Thus,  procood- 
ings  to  condemn  property  for  a  grade  crossing  can  be  maintained 
only  by  leave  of  court  where  receivership  is  pending:  Coster  v. 
Parkers!  iirg  Branch  R.  Co.,  131  Fed.  115;  Buekhannon  &  N.  R.  Co. 
V.  Davis  (C.  C.  A.),  135  Fed.  707.     A  suit  to  recover  for  injuries  re- 


339  ACTIONS  AGAINST  THE  RECEIVER.  $  173 

put  in  issue  the  riglit  of  the  receiver  to  the  possession 
of  the  property,  or  his  right  to  control  and  manage  it 
under  the  receivership.^"  It  is  said  that  "suits  in  which 
it  is  sought  to  deal  with  the  property  in  the  custody  of 
the  receivers,  to  subject  it  to  sale  or  other  remedy,  can 
still  be  brought  only  by  intervening  petition,  or  by  in- 
dependent bill  filed  by  leave  of  the  court.  "^*  A  garnish- 
ment proceeding  is  said  not  to  be  a  "suit  against  the 
receiver,  for  any  act  or  transaction  of  his,  and  such 
claims  must  be  prosecuted  in  the  manner  heretofore  setr 

tied A  proceeding  for  garnishment  purposes  is 

an  equitable  seizure  of  the  funds  and  property  within 
the  custody  of  the  court."^^  But  the  supreme  court  of 
Minnesota  has  held  that  money  due  from  a  receiver 
for  indebtedness  incurred  in  operating  the  road,  may 
be  garnished  in  the  state  court;  they  say:  "But  in  this 
case  it  will  be  noticed  that  what  is  sought  to  be  reached 
by  garnishment  is  the  property,  not  of  the  railway  com- 
pany, but  of  the  defendant,  viz,,  a  debt  due  him  from 
the  receivers.  Moreover,  while  garnishment  of  a  debt 
is  often  called  a  mode  of  attachment,  yet  it  does  not 

ceived  before  the  appointment  is  not  within  the  statute:  Farmers' 
Loan  &  Tr.  Co.  v.  Chicago  &  N.  P.  R.  Co.,  118  Fed.  204. 

20  Swope  V.  Villard,  61  Fed.  417  (a  refusal  of  the  receiver  to  sue 
for  a  cause  of  action  in  favor  of  the  corporation,  is  not  an  ' '  act  or 
transaction  in  carrying  on  the  business");  Bennett  v.  Northern  Pac. 
R.  Co.,  17  Wash.  534,  50  Pac.  496  (the  receiver's  wrongful  claim  to 
an  interest  in  land  is  not  such  act  as  comes  within  the  statute) ; 
Hallifield  v.  Wrightsville  &  T.  R.  Co.,  99  Ga.  365,  27  S.  E.  715;  Glover 
V.  Thayer,  101  Ga.  824,  29  S.  E.  36;  J.  I.  Case  Plow  Works  v.  Finks, 
81  Fed.  529,  26  C.  C.  A.  46;  Dillingham  v.  Anthony,  73  Tex.  47,  11 
S.  W.  139,  15  Am.  St.  Rep.  753,  3  L.  R.  A.  634  (the  statute  does  not 
apply  to  a  case  where  it  is  sought  to  establish  title  to  personalty,  as 
against  the  receiver). 

21  Gilmore  v.  Herrick,  93  Fed.  525. 

22  Central  Trust  Co.  v.  East  Tenn.  V.  &  G.  Ry.  Co.,  59  Fed.  523; 
Reisner  v.  Gulf  etc.  R.  R.  Co.,  89  Tex.  656,  36  S.  W.  53,  59  Am.  St 
Rep.  84,  33  L.  R.  A.  171  (the  case  did  not  discuss  the  statute). 


i  173  EQUITABLE   REMEDIEa  340 

effect  a  specific  lien  on  any  property  of  the  garnishee, 
such  as  is  acquired  by  the  actual  seizure  of  property. 
The  effect  of  the  judgment  is  merely  to  determine  the 
existence  and  amount  of  the  debt,  and  to  substitute  the 
plaintiff  for  the  defendant  as  the  person  to  whom  it  is 
payable.  The  judgment  against  the  receivers  would 
not  be  against  them  personally,  but  against  them  offi- 
cially. No  executory  process  could  be  issued  on  it,  for 
that  would  interfere  with  the  control  of  the  property 
in  the  custody  of  the  federal  court."^*  In  applying  the 
statute  the  federal  courts  have  said :  "The  third  section 
of  the  judiciary  act  of  March  3,  1887,  authorizing  suits 
to  be  brought  against  receivers  of  railroads,  without 
special  leave  of  the  court  by  which  they  are  appointed, 
was  intended,  as  we  think,  to  place  receivers  upon  the 
same  plane  with  railway  companies,  both  as  respects 
their  liability  to  be  sued  for  acts  done  while  operating 
a  railroad  and  as  respects  the  mode  of  obtaining  ser- 
vice."^* And  it  is,  therefore,  generally  held  that  a  fed- 
eral receiver  is  subject  to  an  action  in  a  state  court, 
without  leave  of  the  federal  court,  for  any  damage  due 
by  reason  of  the  management  of  the  property,  when  the 

23  Irvine  v.  McKechnie,  58  Minn.  145,  49  Am.  St.  Rep.  495,  59  N.  W. 
987,  26  L.  R.  A.  218.  The  court  continued:  "Under  the  'removal 
»ct'  [the  act  of  March  3,  1887,  quoted  above]  the  defendant  himself 
could  have  sued  the  receivers,  and  recovered  judgment,  and  we  are 
nnable  to  see  why  the  plaintiff  may  not,  through  garnishee  proceed- 
ings, recover  judgment  against  them  for  the  same  claim,  or  why  a 
jndgment  in  his  favor  interferes  with  property  in  the  custody  of  the 
federal  court  any  more  than  would  a  judgment  in  favor  of  the  de- 
fendant for  the  same  claim." 

24  Eddy  V.  Lafayette,  49  Fed.  807,  1  C.  C.  A.  441;  s.  c.,  163  U.  S. 
456,  16  Sup.  Ct.  10S2,  41  L.  ed.  225  (recognizing  the  receiver's  lia- 
bility for  damages  for  burning  hay  by  fire  set  by  locomotives) ;  Cen- 
tral Trust  Co.  V.  St.  Louis,  A.  &  T.  R.  Co.,  40  Fed.  426  (service  on 
fta  agent  of  the  receiver  ia  binding,  though  the  receiver  is  not  within 
th«  jurisdiction). 


341  ACTIONS  AGAINST  THE  RECEIVER.  S  174 

injury  to  property  or  person  has  resulted  from  the  neg- 
ligence of  the  receiver,  his  agents  or  employees.^^ 

§  174.  Same;  Such  Suits  are  "Subject  to  the  General  Equity 
Jurisdiction"  of  the  Court  of  the  Appointment. — But  while 
the  act  of  Congress  grants  leave  to  sue  in  such  cases, 
it  expressly  provides  that  "such  suits  shall  be  subject 
to  the  general  equity  jurisdiction  of  the  court  in  which 
such  receiver  was  appointed  so  far  as  the  same  shall 
be  necessary  to  the  ends  of  justice."  This  is  construed 
as  "applying  only  to  suits  which  seek  to  interfere  with 
the  receiver's  possession  of  property,  and  to  process  the 
execution  of  which  would  have  that  effect;  any  process, 
whether  for  the  recovery  of  such  property  or  for  the 
enforcement  and  collection  of  a  judgment  out  of  it. 
These  shall  be  subject  to  the  control  of  the  court  ap- 
pointing the  receiver,  so  far  as  the  ends  of  justice  may 
require.  The  time  when,  and  the  manner  in  which,  a 
judgment  against  the  receiver  shall  be  paid;  the  ad- 
justment of  equities  between  all  persons  having  claims 
against  the  property  in  his  hands ;  the  just  distribution 
of  the  funds  according  to  the  rights  of  the  several  par- 
ties interested  in  it — all  must  necessarily  be  under  the 
control  of  the  court  having  custody  of  the  property  by 
its  receiver,  and  shall  be  subject  to  its  general  equity 
jurisdiction."^^     But  where  the  state  court  has  juris- 

25  Gableman  v.  Peoria,  D.  &  E.  R.  R.  Co.,  179  U.  S.  335,  21  Sup. 
Ct.  171,  45  L.  ed.  220;  Texas  &  Pac.  R.  R.  Co.  v.  Cox,  145  U.  S.  593, 
12  Sup.  Ct.  905,  36  L.  ed.  829;  McNulta  v.  Lockridge,  137  111.  270, 
31  Am.  St.  Rep.  362,  27  N.  E.  452,  141  U.  S.  327,  12  Sup.  Ct.  11, 
35  L.  ed.  796;  St.  Louis  S.  W.  Ry.  Co.  v.  Holbrook,  73  Fed.  112, 
19  C.  C.  A.  385;  Ball  v.  Mabry,  91  Ga.  781,  18  S.  E.  64;  Malott  v. 
Shiner,  153  Ind.  35,  74  Am.  St.  Rep.  278,  54  N.  E.  101;  Fullerton  v. 
Fordyce,  121  Mo.  1,  42  Am.  St.  Rep.  516,  25  S.  W.  587;  Robinson  v. 
Mills,  25  Mont.  114,  65  Pac.  114;  Meyer  v.  Harris,  61  N.  J.  L.  83, 
38  Atl.  690;  Baer  v.  McCullough,  176  N.  Y.  97,  68  N.  E.  129. 

20  Dillingham  v.  Hawk,  60  Fed.  494,  9  C.  C.  A.  101,  23  L.  R.  A, 
517.     See,  also,  Dillingham  v.  Anthony,  73  Tex.  47,  15  Am.  St.  Rep. 


§  174  EQUITABLE    EEMEDIES.  342 

diction  of  the  parties  and  the  subject  matter,  its  judg- 
ment against  the  federal  receiver  is  as  final  and  con- 
clusive as  it  is  against  any  other  suitor.  It  is  said  that 
the  right  to  sue  the  receiver  would  be  of  little  utility 
if  its  judgment  could  be  annulled  or  modified  at  the  dis- 
cretion of  the  federal  court.^'  Since  a  federal  receiver 
may  now  be  sued  in  a  state  court  without  leave  of  the 
appointing  court,  a  receiver  cannot  have  such  case  re- 
moved to  the  federal  court  on  the  ground  that  it  is  an- 
cillary to  the  original  suit,  unless  he  shows  such  ad- 
ditional cause  as  makes  the  removal  a  necessary  means 

753,  11  S.  W.  139,  3  L.  E.  A.  634.  In  Missouri  Pac.  Ey.  Co.  v.  Tex. 
Pac.  Ey.  Co.,  41  Fed.  311,  the  court  states:  "The  better  opinion  of 
the  effect  of  said  section  is  that  it  merely  dispenses  with  leave  of  the 
court  appointing  the  receiver,  as  a  prerequisite  to  instituting  a  suit 
against  him  in  another  court,  and  that  a  suit  brought  thereunder  has 
the  same  status,  and  a  judgment  rendered  therein  has  the  same  effect, 
as  if  permission  to  sue  had  been  regularly  granted  by  the  court  ap- 
pointing the  receiver.  However  this  may  be,  it  is  clear  that  when 
a  judgment  is  so  obtained,  and  is  brought  to  the  court  of  original 
jurisdiction  to  be  ranked  as  a  lien  upon  the  trust  funds,  such  judg- 
ment is  subject  to  the  general  equity  jurisdiction,  and  the  duty  of 
determining  the  rightfulness'  of  the  judgment,  including  whether  the 
amount  is  just,  is  still  imposed  upon  this  court,  as  it  would  be  if  it 
had  ordered  an  issue  tried  at  law;  for  this  court  must  still,  in  the 
language  of  the  statute,  exercise  a  'general  equity  jurisdiction,  s  . 
far  as  the  same  shall  be  necessary  to  the  ends  of  justice.'  "  The 
court  had  held  that  the  district  court  rendering  the  judgment  did  not 
have  jurisdiction  of  the  suit  against  the  receiver  under  the  act  of 
1887,  and  the  value  of  the  decision  would  seem  to  be  weakened  by 
that  fact.  See,  also,  Eeinhart  v.  Sutton,  58  Kan.  726,  51  Pac.  221; 
Burke  v.  Ellis,  105  Tenn.  702,  58  S,  W.  855.  See  particularly,  Irwin 
▼.  McKechnie,  58  Minn.  145,  49  Am.  St.  Eep.  495,  59  N.  W.  987,  26 
L.  E.  A.  218;  Sogers  v.  Chippewa  Circuit  Judge  (Mich.),  97  N.  W. 
154  (no  injunction  against  enforcing  higher  telephone  rates  than  city 
ordinance  authorizes). 

27  Central  Trust  Co.  v.  St.  Louis  A.  &  T.  E.  Co.,  41  Fed.  551;  and 
to  the  same  effect,  see  the  cases  in  note  26.  The  statute  does  not  re- 
quire the  discontinuance  of  an  action  against  a  federal  receiver  after 
his  discharge  on  the  ground  that  the  decree  of  the  federal  court  pro- 
vided a  method  for  establishing  claims  against  the  funds  in  the  hands 
of  the  receiver:  Baer  t.  McCullough,  176  N.  Y.  97,  68  N.  E.  129, 


343  ACTIONS  AGAINST  THE  RECEIVER.  8  175 

of  obtaining  justice.^*  But  the  opposite  has  been  held, 
and  it  is  stated  that  an  action  for  damages,  growing 
out  of  the  transactions  of  the  receiver  or  his  employees 
is  ancillary  to  the  suit  in  which  the  receiver  was  ap- 
pointed, and  is  within  the  jurisdiction  of  that  court, 
regardless  of  the  citizenship  of  the  parties,  the  nature 
of  the  controversy,  or  the  amount  involved.^^ 

When  a  receiver  is  sued  without  leave  of  the  appoint- 
ing court,  the  complaint  should  contain  an  allegation 
that  he  is  a  federal  receiver,  as  only  such  are  liable  to 
be  sued  without  leave,  and  it  will  not  be  presumed  that 
he  has  been  appointed  by  a  United  States  court ^'^ 

§  175.  Leave  of  Court  not  Necessary  When  Receiver  is  a 
Trespasser. — "The  principle  is  well  settled  that  the  court 
will  not  protect  a  receiver  for  any  acts  committed  by 
him  outside  of  the  performance  of  the  proper  and  le- 
gitimate duties  of  his  receivership."^^     Therefore,  it  is 

28  Gableman  v.  Peoria,  I>.  &  E.  R.  R.  Co.,  179  U.  S.  335,  21  Sup. 
Ct.  171,  45  L.  ed.  220,  aud  cases  cited;  Eay  v.  Peirce,  81  Fed.  881; 
Pitkin  V.  Cowen,  91  Fed.  599;  Gilmore  v,  Herrick,  93  Fed.  525,  stat- 
ing: "It  is  said,  however,  that  a  suit  against  a  receiver  is  ancillary 
to  the  suit  in  which  the  receiver  is  appointed,  and  therefore  that,  if 
it  is  brought  in  a  state  court,  it  may  be  removed  to  the  federal  court 
in  which  the  principal  suit  is  pending.  The  power  of  one  court  to 
stop  proceedings  in  a  suit  lawfully  begun  and  pending  in  another, 
and  to  take  such  suits  within  its  own  jurisdiction  for  further  hearing 
and  final  definition,  is  the  exercise  of  an  unusual  and  high  preroga- 
tive, and  must  be  based  on  clear  statutory  authority.  Such  a  power 
is  not  to  be  presumed  or  implied.  There  is  no  language  in  any  re- 
moval statute  which  justifies  removal  of  a  cause  from  a  state  court 
to  a  federal  court  on  the  ground  that  it  is  ancillary  to  a  suit  in  a 
federal  court. ' ' 

29  Carpenter  v.  Northern  Pac.  R.  R.  Co.,  75  Fed.  850,  followed  in 
Sullivan  v.  Barnard,  81  Fed.  886.  Both  of  these  cases  are  expressly 
departed  from  in  Gilmore  v.  Herrick,  quoted  supra,  note  28. 

30  Peirce  v.  Chism,  23  Ind.  App.  505,  77  Am.  St.  Rep.  441,  55  N.  E. 
795;  approved  in  Peirce  v.  Jones,  24  Ind.  App.  286,  56  N.  E.  683. 

31  In  re  Young,  7  Fed.  855  (refusing  to  enjoin  an  action  for  tres- 
pass, brought  without  leave  of  court).     In  Gutsch  v.   Mcllhargey,  69 


§  176  EQUITABLE    REMEDIES'.  344 

said,  in  snslainiug  a  suit  in  replevin  for  a  locomotive, 
to  which  the  insolvent  corporation  had  no  right:  "The 
decree  of  a  court  of  chancery  appointing  a  receiver  en- 
titles him  to  its  protection  only  in  the  possession  of 
property  which  he  is  authorized  or  directed  by  the  de- 
cree to  take  possession  of.  When  he  assumes  to  take 
or  hold  possession  of  property  not  embraced  in  the  de- 
cree appointing  him,  and  to  which  the  debtor  never 
had  any  title,  he  is  not  acting  as  the  officer  or  repre- 
sentative of  the  court  of  chancery,  but  is  a  mere  tres- 
passer, and  the  rightful  owner  of  the  property  may  sue 
him  in  any  appropriate  form  of  action  for  damages  or 
to  recover  possession  of  the  property  illegally  taken  or 
detained."^^ 

§  176.  Leave  to  Sue  Receiver,  When  Granted. — The  rule 
is  well  settled  that  in  ordinary  cases  the  granting  or 
withholding  of  leave  to  sue  a  receiver  is  within  the  dis- 
cretion of  the  court  to  which  the  motion  is  ad- 
dressed.^^    The      court     may,      therefore,      determine 

Mich.  377,  37  N,  W.  303,  Campbell,  J.,  says:  "A  receiver  may  fre- 
quently, under  color  of  office,  get  possession  of  property  which  doea 
not  belong  to  him,  and  his  official  character  ought  not  to  be  a  defense 
to  hia  tortious  action,  or  deprive  parties  of  their  rights."  An  action 
of  replevin  for  a  small  frame  house,  of  which  the  receiver  had  im- 
properly obtained  possession,  was  accordingly  sustained,  though  the 
plaintiff  had  not  obtained  leave  to  sue. 

32  Hills  V.  Parker,  111  Mass.  508,  15  Am.  Eep.  63.  See,  also,  for  an 
instructive  case,  Curran  v.  Craig,  22  Fed.  101;  and  to  the  same  effect, 
Kenney  v.  Eanney,  96  Mich.  617,  55  N.  W.  982.  See  Fallon  v.  Eg- 
bert's Woolen  Mills  Co.,  31  Misc.  Eep.  523,  64  N.  Y.  Supp.  466,  56 
App.  Div.  585,  67  N.  Y.  Supp.  347,  as  to  when  the  right  to  sue  a  re- 
ceiver individually  may  be  lost  by  proceeding  against  him  officially. 

That  an  order  directing  the  receiver  to  take  possession  of  property 
not  involved  in  the  litigation  is  void,  and  that  in  acting  under  such 
order  he  becomes  liable  as  a  trespasser,  see  Bowman  v.  Hazen  (Kan.), 
77  Pac.  589. 

8S  Walker  v.  Green,  60  Kan.  20,  55  Pac.  281  (the  leave  may  be  given 
generally,  to  "all  parties");  In  re  Mackwirth,  15  App.  Div.  65,  44 


345  ACTIONS  AGAINST  THE  RECEIVER.  {   176 

wlu'ther  it  is  more  desirable  to  allow  the  receiver  to 
be  sued  in  some  appropriate  form  of  action,  or  to  pro- 
tect him  from  the  suit  entirely.^^  It  is  said  that  leave 
should  not  be  granted  to  sue  a  receiver  unless  the  ap- 
plicant's complaint  makes  out  a  prima  facie  case;  that 
"the  court  should  not  allow  its  receiver  to  be  harassed 
bj  a  suit  where,  according  to  his  own  showing,  the 
plaintiff  has  no  cause  of  action."^'*  But,  on  the  other 
hand,  it  is  settled  that  the  consent  of  the  court  is  not 
to  be  arbitrarily  refused  when  the  plaintiff  presents  a 
meritorious  case;  it  is  said:  "Parties  having  claims 
upon  the  property  have  a  right  to  prosecute  them  by 
suit,  which  is  said  to  be  liable  to  be  abridged,  if  leave 
of  court  must  be  had  for  that  purpose.  The  leave  is, 
however,  necessary  only  for  the  orderly  administration 
of  justice,  and  is  not  to  be  denied  arbitrarily,  but  only 
for  legal  unfitness  for  the  purposes  when  and  where 
sought.  The  right  remains,  and  leave  is  to  be  granted 
according  to  the  right  and  the  proper  adaptation  of  the 
proceedings. "^°     A  federal  court,  after  referring  to  the 

N.  Y.  Supp.  80  (refusing  leave  to  a  creditor  where  the  receiver  was 
not  shown  to  be  lax  in  his  duties  in  caring  for  the  estate) ;  Shrady 
V.  Van  Kirk,  51  App.  Div.  504,  64  N.Y.  Supp.  731  (cannot  be  given 
where  the  receiver  is  only  pendente  lite);  Marshall  v.  Friend,  68  N.  Y. 
Supp.  502,  33  Misc.  Rep.  443;  Pringle  v.  V^oodworth,  90  N.  Y.  502; 
Ludington  v.  Thompson,  153  N.  Y.  499,  47  N.  E.  903;  Reed  v.  Axtell, 
84  Va.  231,  4  S.  E.  587. 

34  In  re  Herbst,  63  Hun,  247,  17  N.  Y.  Supp.  760  (Van  Brunt,  P.  J., 
dissented  on  the  ground  that  the  action  was  not  to  take  from  the 
receiver  any  property  of  which  he  had  possession) ;  Taylor  v.  Hill, 
115  Cal.  143,  44  Pac.  336,  46  Pac.  922;  Mechanics'  Nat.  Bank  v. 
Landauer,  68  Wis.  44,  31  N.  W.  160  (and  the  exercise  of  the  discretion 
will  not  be  disturbed  on  appeal  unless  manifestly  abused). 

86  Jordan  v.  Wells,  3  Woods,  527,  Fed.  Cas.  No.  7525. 

86  American  I>oan  &  Trust  Co.  v.  Central  Vt.  E.  Co.,  84  Fed.  917. 
To  the  same  effect  are  the  English  cases  of  Eandfield  v.  Randfield  3 
De  Gex,  F.  &  J.  766;  Lane  v.  Capey,  [1891]  3  Ch.  411,  414.  See, 
also,  Allan  v.  Manitoba  Ry.  Co.,  10  Manitoba,  106;   Cobb  v.  Sweet, 


I  177  EQUITABLE    EEMEDIES.  346 

general  rule,  has  stated  it  as  follows:  "There  are  other 
cases,  however,  where  the  right  of  a  third  party  to  in- 
tervene in  a  pending  case  is  so  imx>erative,  resting,  as  it 
does,  on  grounds  of  necessity,  and  the  inability  of  the 
party  to  obtain  relief  by  other  means,  that  the  right 
cannot  be  said  to  be  dependent  upon  judicial  discretion. 
For  example,  a  court  cannot  lawfully  refuse  to  permit 
an  intervening  petition  to  be  filed  when  the  petitioner 
shows  a  title  to,  or  lien  upon,  property  in  the  custody 
of  a  receiver,  and  a  present  right  to  its  possession,  which 
is  superior  to  any  right  or  title  that  is  or  may  be  as- 
serted by  the  parties  to  the  suit  in  which  the  interven- 
tion is  filed,  and  at  whose  instance  the  receiver  was  ap- 
pointed."^^ 

§  177.  Practice,  Whether  by  Petition  or  Independent  Ac- 
tion.— While  it  is,  under  some  circumstances,  proper  to 
direct  the  prosecution  of  an  action  at  law  against  the 
receiver  to  determine  the  amount  of  compensation  or 
damages  to  be  paid,  the  better  and  more  commonly  rec- 
ognized practice  is  to  apply  for  relief  to  the  court  in 
which  the  receiver  is  acting.^*     The  proper  course  to 

46  App.  Div.  375,  61  N.  Y.  Supp.  545;  Citizens'  Sav.  Bank  v.  Per- 
son, 98  Mich.  173,  57  N,  W.  121. 

37  Minot  V.  Mastin,  95  Fed.  734,  37  C.  C.  A.  234  (but  the  court 
approved  the  general  rule  indicated  by  the  text  in  the  followin^^ 
words:  "In  cases  of  the  latter  sort,  it  is  usually  held  to  be  discre- 
tionary with  the  court  or  chancellor  to  whom  an  application  to  inter- 
vene is  addressed,  to  allow  or  reject  the  intervention,  and  leave  to 
intervene  should  be  obtained"). 

38  Pacific  Ey.  Co.  v.  Wade,  91  Cal.  449,  456,  25  Am.  St.  Rep.  201, 
27  Pac.  768,  13  L.  E.  A.  754  (proceedings  to  determine  compensation 
for  use  of  tracks  of  street  railway  in  hands  of  receiver) ;  Meredith 
Village  Sav.  Bank  v.  Simpson,  22  Kan.  414,  432;  Central  Trust  Co.  v. 
Wabash,  St.  Louis  &  P.  R.  Co.,  23  Fed.  858;  Citizens'  Sav.  Bank  v.  Ing- 
ham, Circuit  Judge,  98  Mich.  173,  57  N.  W.  121;  Buflfnm  v.  Hale,  71 
Minn.  190,  73  N.  W.  856;  Goodnough  v.  Gatch,  37  Or.  5,  60  Pac.  383; 
Crutchfleld  v.  Hunter  (N.  C),  50  S.  E.  557. 


347  ACTIONS  AGAINST  THE  EECEIVEE.  §  ITi 

be  pursued  is,  for  the  court  to  proceed  to  investigate 
the  matter  in  a  summary  way,  and  if  it  appears  that 
the  case  is  free  from  difficulty,  and  the  liability  of  the 
receiver  plain,  or  that  the  dispute  involves  no  question 
which  must  necessarily  be  settled  at  law,  the  court 
should  proceed  to  decide  the  matter;  since  the  court,  in 
giving  leave  to  sue  in  such  a  case,  would  be  authorizing 
an  inexcusable  waste  of  the  moneys  of  the  trust.^^  And 
where  the  party  who  has  a  legal  cause  of  action  against 
a  receiver  comes  voluntarily  into  court  and  submits 
himself  to  the  jurisdiction  of  the  court,  offering  to  do 
what  the  court  deems  equitable,  the  court  is  compe- 
tent to  deal  with  his  complaint,  notwithstanding  the 
receiver's  objection.^*^  It  has  been  held  that  if  the  pro- 
ceeding is  to  assert  an  equitable  right  in  relation  to  the 
property  in  the  receiver's  hands,  it  must  be  by  petition 
in  the  cause  in  which  the  receiver  was  appointed,  and 
not  by  independent  suit.*^  A  court  of  law  is,  however, 
the  more  appropriate  forum  to  determine  a  question  of 
damages  for  personal  injuries.^^ 

Since  the  court  of  the  appointment  has  power  to  fix 
the  forum  in  which  suit  shall  be  brought  against  its 
receiver,  it  has  also  the  power  to  revoke  the  permission 
to  sue  when  it  is  sought  to  be  abused.  Thus,  where  per- 
mission was  granted  to  sue  the  receiver  in  the  court  of 
the  appointment,  and  in  no  other,  and  the  plaintiff  in 
such  action  filed  his  petition  and  bond  for  a  removal  of 

39  Lehigh  Coal  &  Navigation  Co.  v.  Central  K,  E.  Co.,  38  N.  J.  Eq. 
175,  179. 

40  Potter  V.  Spa  Spring  Brick  Co.,  47  N.  J.  Eq.  442,  20  Atl.  852. 
•*i  Porter  v.  Kingman,  126  Mass.  141  (to  cancel  mortgage) ;  Meeker 

V.  Sprague,  5  Wash.  242,  31  Pac.  628  (refusal  to  allow  independent 
action  to  foreclose  mortgage  proper,  and  not  an  abuse  of  discretion)  j 
but  see  Talladega  Mercantile  Co.  v.  Jenifer  Iron  Co.,  102  Ala.  259, 
14  South.  743;  Jones  v.  Stewart  (Tenn.  Ch.),  61  S.  W.  105. 

42  Palys  V.  Jewett,  32  N.  J.  Eq.  302;  and  see  Melendj  v.  Barbour, 
78  Va.  544. 


S   178  EQUITABLE    REMEDIES.  348 

the  cause  to  a  federal  court,  it  was  not  error  for  the 
court,  of  its  own  motion,  to  revoke  the  order  granting 
permission  to  sue  the  receiver,  and  to  dismiss  the  action 
pending  against  him.^' 

§  178.  Receiver's  Right  to  Appeal. — It  is  held  that 
where  a  judgment  is  recovered  against  a  receiver,  on 
account  of  his  management  of  the  property,  he  may 
properly  appeal  from  the  decision;  that  the  court's  di- 
rections to  him  to  defend  do  not  extend  only  to  the  court 
that  hears  the  trial. ^^  But  he  may  not  appeal  from 
an  order  determining  the  rights  of  parties,  where  a 
payment  under  the  order  would  be  a  protection  to 
him,*^  nor  can  he  appeal  from  an  order  relative  to  his 
rights  and  duties,  without  previous  authorization  from 
the  court^^  Mr.  Justice  Brew^er,  in  a  recent  case,'*'^ 
ably  summarizes  the  rules  as  follows:  "First.  A  re- 
ceiver may  defend,  both  in  the  court  appointing  him 
and  by  appeal,  the  estate  in  his  possession  against  all 
claims  which  are  antagonistic  to  the  rights  of  both  par- 
ties to  the  suit*^  ....  Second.  He  may  likewise  de- 
fend the  estate  against  all  claims  which  are  antagon- 
istic to  the  rights  of  either  party  to  the  suit,  subject  to 
the  limitation  that  he  may  not,  in  such  defense,  ques- 

43  Meredith  Village  Sav.  Bank  v.  Simpson,  22  Kan,  414,  433. 

44  Thorn  v.  Pittard,  62  Fed.  232,  10  C.  C.  A.  352. 

45  Dorsey  v.  Sibert,  93  Ala.  312,  9  South.  288;  First  Nat.  Bank  v. 
Bunting  &  Co.,  7  Idaho,  27,  59  Pac.  929,  1106. 

46  McKinnon  v.  Wolfenden,  78  Wis.  237,  47  N.  W.  436  ("a  re- 
ceiver is  the  mere  servant  or  agent  of  the  court  to  do  its  bidding, 
and  he  cannot  be  heard  to  question  by  appeal  the  regularity  or  pro- 
priety of  the  orders  of  the  court  in  the  action,  unless  the  court  first 
authorizes  him  to  do  so"). 

47  Bosworth  V.  Terminal  R.  Assn.,  174  U.  S.  182,  19  Sup.  Ct.  625, 
48  L.  ed.  941,  modifying  80  Fed.  969,  26  C.  C.  A.  279,  53  U.  S.  App. 
302.  See,  also,  Kirkpatrick  v.  Eastern  Milling  &  Export  Co.,  IS.j 
Fed.  151. 

48  For  instance,  he  may  thus  contest  a  claim  for  taxes. 


349  ACTIONS  AGAINST  THE  RECEIVER.  S  179 

tion  any  order  or  decree  of  the  court  distributing  bur- 
dens or  apportioning  rights  between  the  parties  to  the 
suit,  or  any  order  or  decree  resting  upon  the  discretion 

of  the  court  appointing  him Third.  Neither  can 

he  question  any  subsequent  order  or  decree  of  the  court 
distributing  the  estate  in  his  hands  between  the  parties 
to  the  suit.  It  is  nothing  to  him  whether  all  of  the 
property  is  given  to  the  mortgagee  or  all  returned  to 
the  mortgagor.  He  is  to  stand  indifferent  between  the 
parties,  and  may  not  be  heard,  either  in  the  court  which 
appointed  him  or  in  the  appellate  court,  as  to  the  right- 
fulness of  any  order  which  is  a  mere  order  of  distribu- 
tion between  the  parties.**  ....  Fourth.  He  may  ap- 
peal from  an  order  or  decree  which  affects  his  personal 
rights,  provided  it  is  not  an  order  resting  in  the  discre- 
tion of  the  court."*"  ....  Fifth,  His  right  to  appeal 
from  an  allowance  of  a  claim  against  the  estate  does  not 
necessarily  fail  when  the  receivership  is  terminated 
to  the  extent  of  surrendering  the  property  in  the  pos- 
session of  the  receiver.  It  is  a  common  practice  in 
courts  of  equity,  anxious  as  they  are  to  be  relieved  of 
the  care  of  property,  to  turn  it  over  to  the  parties  en- 
titled thereto,  even  before  the  final  settlement  of  all 
claims  against  it,  and  at  the  same  time  to  leave  to  the 
receiver  the  further  defense  of  such  claims,  the  party 
receiving  the  property  giving  security  to  abide  by  any 
decree  which  may  finally  be  entered  against  the  estate." 

§  179.  Judgfmeiit  Against  Receiver,  How  Enforced;  as 
Ag^nst  Successor  in  Office;  in  Case  of  His  Discharge. — As  a 
general  rule,  actions  against  the  receiver  are  in  law 
actions  against  the  receivership;  his  liabilities  are  oflS- 

4»  Thus,  in  a  foreclosure  suit,  a  receiver  may  defend  the  property 
from  an  adverse  claim,  and  may  appeal. 

50  He  may  not  appeal  from  an  order  discharging  or  removing  him. 
He  may  appeal  from  an   order  disallowing  him  commissions  or  fees. 


«   i79  EQUITABLE   REMEDIES.  350 

cial,  not  personal  ;^^  and  judgment  against  him  should 
be  so  entered  as  to  be  enforced  only  out  of  the  funds 
properly  chargeable  to  him  in  the  capacity  of  receiver,^" 
leaving  the  manner  of  its  enforcement  to  be  determined 
by  the  court  having  jurisdiction  of  the  receivership.'*' 
And  an  action  may  be  brought  against  a  receiver  on  a 
liability  incurred  by  his  predecessor  in  the  receivership, 
since  the  receivership  is  continuous  and  uninterrupted 
until  the  court  relinquishes  its  hold  upon  the  property, 
though  its  personnel  may  be  subject  to  repeated 
changes ;  the  position  of  the  receiver  in  this  respect  be- 
ing somewhat  analogous  to  that  of  a  corporation  sole.*^* 
Leave  to  bring  suit  against  a  receiver,  therefore,  ex- 
tends to  permit  suit  against  his  successor  in  offlce.^^ 

It  also  follows  that  no  judgment  can  be  rendered 
against  a  receiver  in  his  official  capacity  after  he  is 
discharged  from  the  receivership  and  the  property  is 
withdrawn  from  his  custody.^^     The  supreme  court  of 

51  McNulta  V.  Lockridge,  141  U.  S.  327,  12  Sup.  Ct.  11;  affirming 
137  m.  210,  31  Am.  St.  Rep.  362,  27  N.  E.  452;  Bonner  v.  Mayfield, 
82  Tex.  234,  18  S.  W.  305. 

52  McXulta  V.  Ensch,  134  111.  46,  24  N.  E.  631. 

53  Brown  v.  Brown,  71  Tex.  355,  9  S.  W.  261.  See,  also,  Painter 
V.  Painter,  138  Cal.  231,  94  Am.  St.  Rep.  47,  71  Pae.  90  (judgment 
cannot  be  enforced  on  execution;  practice  is  to  apply  to  the  court 
for  an  order). 

54  McNulta  V.  Lockridge,  supra;  State  v.  Port  Royal  &  A.  R.  Co., 
84  Fed.  67. 

55  Fordyce  v.  Dixon,  70  Tex.  694,  8  S.  W.  504. 

56  Farmers'  Loan  &  Trust  Co.  v.  Central  R.  R.  Co.  of  Iowa,  7  Fed 
537,  2  McCrary,  181;  Lehman  v.  McQuown,  31  Fed.  138;  Western  N 
Y.  &  P.  R.  Co.  V.  Penn  Refining  Co.  (C.  C.  A.),  137  Fed.  343;  Archam 
beau  V,  Piatt,  173  Mass.  249,  53  N.  E.  816;  Ansley  v.  McLoud  (Tnd 
Ter.),  82  S.  W.  908;  Brawn  v.  McBean,  54  App.  Div.  635,  66  N.  Y.  Siipp 
785;  New  York  &  W.  W.  Tel.  Co.  v.  Jewctt.  115  N.  Y.  166,  21  N 
E.  1036;  Texas  &  Pac.  R.  R.  Co.  v.  Johnston,  76  Tex.  421,  18  Am.  St 
Rep.  60,  13  S.  W.  463;  Boggs  v.  Brown,  82  Tex.  41,  17  S.  W.  830; 
Fordyce  v.  Du  Bose,  87  Tex.  78,  26  S.  W.  1050  (see  for  the  effect  of  a 
statute  allowing  judgment  against  receiver  after  his  discharge,  when 


351  ACTIONS  AGAINST  THE  BECEIVEE.  i  179 

Mississippi  says:  "The  final  discharge  of  the  receiver 
put  an  end  to  his  official  existence,  and  withdrew  from 
his  care  and  management  the  road  and  property  of  the 
company.  The  discharge  having  terminated  the  repre- 
sentative character  of  the  receiver,  we  are  at  a  loss  to 
understand  how  any  judgment  could  be  rendered 
against  him  officially  that  would  render  liable  to  its 
satisfaction  any  property  of  the  company, — property  in 
his  hands  when  the  suit  was  brought,  but  now  finally 
withdrawn  from  him  by  the  extinction  of  his  official 

character    before    his  plea  was  filed It  seems 

plain  to  us  that,  with  the  termination  of  his  representa- 
tive character,  and  the  withdrawal  of  the  road  and  its 
property  from  his  custody  by  the  order  discharging  him, 
no  judgment  could  be  rendered  against  him  properly, 
as  the  representative  of  the  company,  whereby  to  make 
its  property  chargeable.  His  official  liability  ended 
with  his  official  existence."^^  But  the  fact  that  a  re- 
suit  is  pending  at  the  time);  Texas  &  Pac.  R.  R.  Co.  v.  Watson,  13 
Tex.  Civ.  App.  555,  36  S.  W.  290  (a  judgment  rendered  after  his  dis- 
charge binds  neither  the  receiver  nor  the  company  represented). 
But  the  fact  that  the  property  has  been  sold,  and  has  entirely  passed 
from  his  control  is  no  bar  to  an  action  against  him  if  he  has  not  been 
finally  discharged:  Erb  v.  Popritz,  59  Kan.  264,  68  Am.  St.  Rep.  362, 
52  Pac.  871.  See,  also,  Houston  City  St.  Ry.  Co.  v.  Storrie  (Tex.  Civ. 
App.),  44  S.  W.  693;  Houston  &  F.  C.  Ry.  Co.  v.  Stoycharski  (Tex. 
Civ.  App.),  35  S.  W.  851,  37  S.  W.  415;  Howe  v.  Harper,  127  N.  C.  356, 
37  S.  E.  505. 

57  Bond  V.  State,  68  Miss.  648,  9  South.  353.  See  Davis  v.  Duncan, 
19  Fed.  477,  stating  that  the  court  is  aware  of  no  rule  by  which  it 
can  "in  any  way  alter,  change,  modify,  suspend  or  expand  the  decree 
discharging  the  receiver,  and  again  obtain  jurisdiction  of  the  property 
and  funds  which  it  had  by  its  decree  ordered  the  receiver  to  turn 
over  to  ITie  corporation  and  which  it  is  admitted  was  done. ' '  But 
that  an  action  against  the  receiver  is  not  necessarily  terminated  by 
the  discharge  of  the  receiver  and  sale  of  the  property  under  decree 
of  the  appointing  court,  under  a  section  of  the  New  York  code  al- 
lowing a  continuance  of  the  action  by  or  against  the  original  party 
thereto,  in  case  of  a  transfer  of  interest  or  devolution  of  liability,  see 
Baer  v.  McCullough,  176  N.  Y.  97,  68  N.  E.  129. 


i  179  EQUITABLE   REMEDIES.  352 

ceiver  has  been  discharged  is  no  bar  to  an  action  against 
him,  where  he  has  sold  the  property  of  another  with  no- 
tice of  his  claim,  and  no  notice  of  the  motion  to  dis- 
charge him  was  served  on  the  owner  f^  or  where  he  has 
collected  money  under  a  void  appointment."^®  And 
where  judgment  has  been  recovered  against  him  in  the 
lower  court,  and  he  is  discharged  pending  an  appeal, 
judgment  may  properly  be  entered  against  him  if  the 
judgment  of  the  lower  court  is  affirmed.^*^ 

58  Muller  V.  Loeb,  64  Barb.  454. 

59  Johnston  v.  Powers,  21  Mo.  292,  32  N.  W.  62.  But  if  the  re- 
ceiver has  in  good  faith  applied  the  money  in  improving  the  property, 
and  the  order  was  valid  on  its  face,  he  will  be  protected  to  that  ex- 
tent: Edee  v.  Strunk,  35  Neb.  307,  53  N.  W.  70. 

eo  McCarley  v.  McGhee,  108  Fed.  494;  Woodruff  v.  Jewett,  115  N, 
T.  267,  22  N.  E.  156. 


35S  SUITS  BY  THE  EECEIVEB.  §  ISO 


CHAPTER  VI. 


SUITS  BY  THE  RECEIVER. 

ANALYSIS. 

S   180.     Suits  by  receivers;   leave  of  court  necessary, 

§  181.     Suits  by  receiver,  in  whose  name. 

§  182.     Appointment  cannot  be  questioned  collaterally. 

§  183.     Pleading  in  suit  by  receiver;  must  allege  his  authority. 

§  184.     Same;   appointment   and   authority,  how  alleged. 

§  185.     Proof  by  receiver  of  his  appointment  and  powers. 

§  186.     Eeceiver   is   subject    to    the   same    defenses   as   the   on« 
whom  he  represents. 
§§  187-1S9.     Set-off  against  the  receiver. 

§   187.     In  general. 

§  188.     Set-off  by  bank  depositor. 

§  189.     Set-off    against    corporation    receiver,    in    suit     against 
stockholders. 

I  190.     Statutory   receiver   of   insolvent   corporation     represents 
its  creditors. 

S  191.     Receiver  in  supplementary  proceedings,  how  far  a  repre- 
sentative of  creditors. 

§  180.  Suits  by  Receivers;  Leave  of  Court  Necessary. — 
In  the  absence  of  statute,  it  is  generally  held  that  a  re- 
ceiver can  "neither  bring  nor  defend  actions  except  by 
permission  and  the  direct  authority  of  the  court  by 
which  he  was  appointed."^     It  is  said:  "That  rule  is  a 

1  Foster  v.  Townshend,  68  N.  Y.  206.  See  to  the  same  effect, 
Phoenix  Ins.  Co.  v.  Schultz,  80  Fed.  337,  25  C.  C.  A.  453  (see  for  what 
constitutes  leave  to  sue);  First  Nat.  Bank  v.  C.  B.  &  Co.,  7  Idaho,  27, 
59  Pac.  929,  1106  (leave  to  appeal  should  be  obtained);  Hcrron  v. 
Vance,  17  Ind.  595;  Coffin  v.  Eansdell,  110  Ind.  417,  11  N.  E.  20; 
Wayne  Pike  Co.  v.  State,  134  Ind.  672,  34  N.  E.  440;  Hatfield  v. 
Cummings,  142  Ind.  350,  39  N.  E.  859;  Runner  v.  Deviggins,  117  Ind. 
238,  36  L.  K.  A.  645,  46  N.  E.  580;  Vigo  Real  Estate  Co.  v.  Reese,  21 
Ind,  App.  20,  51  N.  E.  350;  Peirce  v.  Chism,  23  Ind.  App.  505,  77  Am, 
Equitable  Remedies,  Vol.  1  —  23 


i   _3v>  EQUITABLE   KEMEDIES.  354 

necessary  result  of  the  nature  of  the  functions  of  the 
receiver.  He  is  a  mere  custodian  of  the  property  for 
the  court  as  one  of  its  officers.  His  acts  are  the  acts  of 
the  court  when  duly  sanctioned,  and  Avhen  not  so  sanc- 
tioned they  have  no  greater  effect  than  the  acts  of  other 
unauthorized  officers  or  agents."^  The  supreme  court 
of  Georgia  has  stated :  "The  rule  is  perhaps  an  arbitrary 
one,  but  it  is,  nevertheless,  well  settled,  that  a  receiver 
has  no  right  to  sue  without  express  authority  from  the 
chancellor;  his  general  authority  to  collect  and  keep 
the  assets  is  not  sufficient  to  justify  him  in  bringing 
an  action.  A  receiver  is  at  least  only  an  officer  of  the 
court,  and  the  foundation  of  the  rule  probably  is,  that 
it  is  always  for  the  court  to  determine  whether  it  shall 
be  dragged  into  litigation.  At  law,  the  party  having 
the  legal  right  to  sue  is  the  proper  party,  and  if  one 
comes  suing  for  the  property  of  another,  he  must  show, 
as  part  of  his  right  to  recover,  the  authority  he  has  to 
come  into  a  court  of  law  asserting  another's  right."^ 

St.  Rep.  441,  55  N.  E.  795;  Troy  Sav.  Bank  v.  Morrison,  27  App.  Div. 
423,  50  N.  Y.  Supp.  225;  Battle  v.  Davis,  66  N.  C.  262;  Davis's  Admrs. 
V.  Snead,  33  Gratt.  709;  Eeynolds's  Exr.  v.  Pettyjohn,  79  Va.  327;  Mc- 
Allister V.  Harmon,  97  Va.  543,  34  S.  E.  474  (leave  of  court  to  sue  will 
pot  be  implied  from  general  order  to  collect).  See  the  following  cases  to 
the  effect  that  the  receiver  should  allege  that  he  has  obtained  leave 
of  court  to  sue:  Wheat  v.  Bank  of  California,  119  Cal.  4,  50  Pac.  842, 
51  Pac.  47;  Morgan  v.  Buski,  61  N.  Y.  Supp.  929,  30  Misc.  Eep.  245; 
Swing  V.  White  Eiver  Lumber  Co.,  91  Wis.  517,  65  N.  W.  174;  Rhodes 
V.  Hilligoss,  16  Ind.  App.  478,  45  N.  E.  666;  Gainey  v.  Gilson,  149 
Ind.  58,  48  N.  E.  633,  To  the  effect  that  he  need  not  allege  that 
leave  of  court  has  been  obtained,  see  Hegewisch  v.  Silver,  140  N.  Y. 
414,  35  N.  E.  658;  Hardin  v.  Sweeney,  14  Wash.  129,  44  Pac.  138; 
Compton  V.  Schwabacher  Bros.  &  Co.,  15  Wash.  306,  46  Pac.  338; 
Howard  v.  Stephenson,  33  W.  Va.  116,  10  S.  E.  66;  Elliott  v.  Trahern, 
35  W.  Va.  634,  14  S.  E.  223;  Minn.  etc.  St.  Ry.  Co.  v.  Minn.  etc.  R. 
Co.,  61  Minn.  502,  63  N.  W.  1035. 

2  Fin<:ke  v.  Funke,  25  Hun,  616;  approved  in  Ogden  v.  Arnot,  29 
Hun,  146 

3  Screven  v.  Clark,  48   Ga.  41. 


355  SUITS  BY  THE  EECEIVER.  S  150 

In  regard  to  the  case  of  a  receiver  pendente  lite,  where 
leave  of  court  was  not  obtained,  the  supreme  court  of 
California  states :  "As  a  rule,  however,  the  receiver  can- 
not sue  to  recover  property  which  has  not  come  to  his 
possession,  or  which,  being  in  the  possession  of  the  de- 
fendant, ought  to  have  been  delivered  to  him.  He  can- 
not maintain  trover  for  property  of  the  insolvent  con- 
verted before  the  adjudication,  nor  to  recover  property 
transferred  by  the  debtor  in  fraud  of  creditors."^  There 
seems  to  be  a  lack  of  harmony  in  the  decisions  as  to  the 
form  in  which  the  consent  to  sue  should  be  given ;  some 
of  the  courts  have  held  that  the  order  may  allow  the 
receiver  to  prosecute  and  defend  all  actions  brought 
against  him  in  his  official  capacity,^  while  other  courts 
maintain  that  such  general  permission  is  too  liberal  for 
judicious  management  of  the  property.  Such  practice 
is  criticised  in  New  York  as  follows :  "It  seems  to  me, 
however,  that  that  portion  of  the  order  which  author- 
izes the  receiver  to  prosecute  and  defend  without  the 
further  order  of  the  court  all  actions  brought  or  about 
to  be  brought  by  or  against  said  co-partners,  or  any  of 
them,  pertaining  to  said  co-partnership  business,  .... 
is  improper,  and  its  presence  in  the  order  was  probably 
overlooked  by  the  justice  holding  the  special  term  at 
which  the  order  was  made.  The  rule  requiring  leave 
of  court  to  be  obtained  before  the  receiver  can  either 
sue  or  be  sued  is  in  order  to  prevent  any  unnecessary 
waste  of  the  assets  in  the  receiver's  hands  in  unneces- 

4  Tibbets  v.  Cohn,  116  Cal.  365,  48  Pac.  372;  quoted  with  approval 
in  Bishop  v.  McKillican,  124  Cal.  321,  71  Am.  St.  Rep.  68,  57  Pac.  76, 
refusing  to  allow  a  reeo\cry  of  personal  property  of  which  the  re- 
ceiver had  never  had  possession. 

5  Taylor  v.  Canady,  155  Ind.  671,  57  N.  E.  524,  59  N.  E.  20.  See, 
also,  Wason  v.  Frank,  7  Colo.  App.  541,  44  Pac.  378;  Wyman  v.  Will- 
iams. 52  Neb.  833,  73  N.  W.  285;  Boyd  v.  Koyal  Ins.  Co.,  Ill  N.  a 
372,  16  S.  E.  389. 


{  181  EQUITABLE    KEMEDIES.  35ft 

sary  litigation,  and  contemplates  at  least  some  inves- 
tigation by  the  court  of  the  propriety  of  the  commence- 
ment of  such  suits  before  permission  is  granted ;  and  to 
authorize  in  advance  the  commencement  of  suits  with- 
out any  knowledge  of  what  they  are  for,  or  of  the  neces- 
sity thereof,  is  a  complete  nullification  of  the  rule,  and 
exposes  the  estate  to  the  very  thing  that  the  rule  was  in- 
tended to  guard  against,  and  is  improper  practice."* 
In  many  states,  the  rule  that  the  receiver  should  obtain 
leave  of  court,  prior  to  defending  or  bringing  an  action, 
has  been  changed  by  statute  so  that  he  may  sue  as  freely 
as  the  one  whom  he  represents,  if  it  is  necessary  for  the 
protection  of  the  estate.' 

§  181.  Suits  by  Receiver,  in  Whose  Name. — While  the 
decisions  are  not  altogether  harmonious  on  the  subject, 
it  seems  to  be  generally  held  that,  in  the  absence  of 
statute,  the  receiver  should  sue  in  the  name  of  the 
party  having  the  legal  title,  and  over  whose  property 
he  has  been  appointed.®     In  Indiana  it  is  stated:  "It 

6  Witherbee  v.  Witherbee,  17  App.  Div.  181,  45  N.  Y.  Supp.  297. 

7  See  Tibbeta  v.  Cohn  &  Co.,  116  Cal.  365,  48  Pac.  372  (refusing  to 
extend  the  code  provision  to  a  sheriff  acting  as  receiver  pendente  lite). 
In  Indiana,  a  statute  providing  that  "the  receiver  shall  have  power, 
under  control  of  the  court,  or  of  the  judge  thereof  in  vacation  to 
bring  and  defend  actions,"  does  not  authorize  a  receiver  to  bring 
action  without  leave  of  court:  Khodes  v.  Hilligoss,  16  Ind.  App.  47S, 
45  N.  E.  666.  But  see  Manlove  v.  Burger,  38  Ind.  211.  In  North 
Carolina,  the  statute  giving  "power  to  prosecute  and  defend"  with 
PC  reference  to  the  control  of  the  court,  it  is  held  that  the  receiver 
may  sue  without  leave  having  been  obtained:  Gray  v.  Lewis,  94  N. 
C.  392;  Weill  v.  First  Nat.  Bank,  106  N.  C.  1,  11  S.  E.  277;  Worth  v. 
Wharton,  122  N.  C,  376,  29  S.  E.  370;  Everett  v.  State,  28  Md.  190; 
Baker  v.  Cooper,  57  Me.  388;  TJeland  v.  Hangan,  70  Minn.  349,  73  N. 
W.  169;  Boston  &  M.  C.  C.  &  S.  M.  Co.  v.  Montana  etc.  Co.,  24  Mont. 
142,  60  Pac.  990;  Mathis  v.  Pridham,  1  Tex.  Civ.  App.  58,  20  S.  W. 
1015.  See,  also,  McBryan  v.  Universal  Elevator  Co.,  130  Mich.  Ill, 
97  Am.  St.  Eep.  453,  89  N.  W.  683. 

8  Dick  V.  Struthers,  25  Fed.   103;   Harland  v.  Bankers'  &  M.  TeL 


357  SUITS  BY  THE  RECEIVER.  S  181 

is  undoubtedly  a  correct  general  proposition  that  in  the 
absence  of  authority  derived  from  the  statute,  or  from 
the  court  ordering  his  appointment,  a  receiver  has  no 

power  to  sue  in  his  own  name The  reason  is  that 

the  legal  title  to  cJioses  in  action,  or  other  property 
which  he  is  authorized  to  reduce  to  possession,  is  or- 
dinarily not  transferred  to  the  receiver,  but  remains  in 
the  owner,  in  whose  name  suits  must  be  brought,  un- 
less the  statute  or  the  order  of  the  court  authorizes 
the  receiver  to  proceed  in  his  own  name."^  A  leading 
decision  in  North  Carolina  says,  "the  action  must  be 
brought  in  the  name  of  the  legal  owner,  and  he  will  be 
compelled  to  allow  the  use  of  his  name  upon  being 
properly  indemnified  out  of  the  estate  and  effects,  un- 
der the  control  of  the  court."^** 

While  recognizing  the  general  rule,  there  are  cases 
holding  that  in  certain  instances  the  receiver  may  main- 
tain an  action  in  his  own  name,  without  the  aid  of  a 
statute.  Thus  it  is  said:  "But  where  the  goods  have 
actually  come  into  his  possession,  it  can  hardly  be  con- 
tended that  he  could  not  maintain  this  action  against 
one  who  wrongfully  invaded  such  possession  and  con- 
verted the  goods  committed  to  his  cara     Were  such 

Co.,  32  Fed.  305;  Garver  v,  Kent,  70  Ind.  428;  Moriarty  v.  Kent,  71 
[nd.  601;  Wilson  v.  Welsh,  157  Mass.  77,  31  N.  E.  712;  Ft.  Payne  Coal 
&  Iron  Co  V.  Webster,  163  Mass.  134,  39  N,  E.  786;  East  Tenn.  Land 
Co,  V,  Leeson  (Mass.),  57  N.  E.  656;  Freeman  v.  Winchester,  10 
Smedes  &  M.  (18  Miss.)  577;  Newell  v.  Fisher,  24  Miss.  392  (the 
statement  of  the  court  would  lead  to  the  conclusion  that  the  receiver 
could  sue  in  his  own  name  if  he  had  the  legal  title) ;  State  v.  Gambs, 
68  Mo.  289;  Yeager  v.  Wallace,  44  Pa.  St.  294;  Murtey  v.  Allen,  71 
Vt.  377,  76  Am.  St.  Rep.  779,  45  Atl.  752  (inferring  that  he  conld 
eue  at  law  in  his  own  name  if  he  had  the  legal  title);  King  v.  Cutts, 
24  Wis.  627. 

9  Pouder  v.  Catterson,  127  Ind.  434,  26  N.  E.  66. 

10  Battle  V.  Davis,  66  N.  C.  252  (the  rule  has  since  been  changed 
by  code). 


I  181  EQUITABLE   REMEDIES.  358 

not  the  case  he  would  not  rise  to  the  dignity  and  power 
of  the  most  ordinary  bailee.  He  would  be  the  merest 
automaton  that  ever  sprang  from  a  legal  workshop. 
In  the  case  in  hand,  the  goods  were  in  the  possession 
of  the  receiver  and  were  sold  by  him  by  virtue  of  the 
power  conferred  upon  him  by  the  court  for  that  pur- 
pose. The  contract  of  sale  was  with  him;  his  receipt 
for  the  money  to  the  purchaser  would  have  been  good 
to  discharge  him  from  the  price  of  the  goods;  and  for 
them  or  their  price  he  is  responsible.  We  are  of  opin- 
ion, therefore,  that  the  receiver  might  maintain  this 
suit  in  his  own  name."^^  And  where  a  receiver  sought 
the  possession  of  land  to  which  he  as  receiver  was  en- 
titled, the  court  said:  "The  object  of  the  suit  is  to  ob- 
tain possession  of  the  real  estate  in  question  for  the 
receiver  and  not  for  the  bank.  A  suit  in  the  name  of 
the  bank  would  not  accomplish  that  purpose;  for  the 
execution,  or  writ  of  possession,  if  one  was  obtained, 
would  require  the  officer  executing  it  to  put  the  bank, 
and  not  the  receivers,  into  possession.  As  it  is  the  re- 
ceivers that  are  seeking  the  possession,  we  think  the 
suit  is  properly  brought  in  their  names.  It  is  the 
direct  road  to  the  end  in  view."^^  It  has  been  said 
that  where  an  assignee  can  sue  in  his  own  name,  a  re- 
ceiver may  also  where  he  has  analogous  rights.  The 
court  said,  "In  the  present  case  the  receiver  is  called 
by  the  court  in  Washington  a  'quasi  assignee  for  cred- 
itors.'    He  is  charged  with  the  administration  of  a  trust 

11  Singerly  v.  Fox,  75  Pa.  St.  112.  See,  also,  Wason  v.  Frank,  7 
Colo.  App.  541,  44  Pac.  378.  The  statement  by  Henry,  J.,  in  State  v. 
Gambs,  68  Mo.  289,  is  to  the  same  effect, 

12  Baker  v.  Cooper,  57  Me.  388;  Mathis  v.  Pridham,  1  Tex.  Civ. 
App.  58,  20  S.  W.  1015,  states  that  though  not  authorized  by  statute 
or  court  order  to  sue  in  his  own  name,  he  may  do  so  when  ordered 
by  statute  to  sue  generally.  See,  also,  Evans  v.  Pease,  21  E.  I.  187,  42 
Atl.  506. 


359  SUITS  BY  THE  RECEIVEB.  S  181 

fund  which  does  not  take  from  nor  come  into  actual 
existence  until  after  his  appointment,  and  he  is  the 
only  person  who  can  collect  it.  By  virtue  of  his  official 
relation  to  the  corporation  and  its  creditors,  he  is  the 
owner  of  the  legal  title  to  this  fund,  as  a  trustee  for 
the  creditors.  A  suit  could  not  have  been  brought  in 
the  name  of  the  corporation,  and  he  is  the  only  person 
who  can  now,  or  who  ever  could,  legally  demand  and 
collect  the  money.  We  are  of  opinion  that  the  action 
is  rightly  brought  in  his  name."^^ 

In  those  states  where  the  code  system  prevails  and  it 
is  provided  that  suits  shall  be  brought  in  the  name  of 
the  real  party  in  interest,  a  receiver  is  allowed  to  sue 
in  his  own  name  on  the  ground  that  he  is  the  real  party 
in  interest. ^^  The  supreme  court  of  Minnesota  says: 
"The  receiver,  as  an  officer  of  the  court  which  has  taken 
control  of  the  property,  is,  for  the  time  being,  and  for 
the  purpose  of  the  administration  of  the  assets,  the 
real  party  in  interest  in  the  litigation.  There  is  no 
reason,  therefore,  why  the  suit  should  not  be  instituted 

in  his  own   name Whatever  technical   reasons 

may  have  existed  for  refusing  to  permit  common-law 
receivers  to  sue  in  their  own  names,  they  exist  no  longer, 

13  Howarth  v.  Lombard,  175  Mass.  570,  56  N.  E.  888,  49  L.  R.  A. 
301;  Buswell  v.  Supreme  Sitting  etc.  of  Iron  Hall,  161  Mass.  224,  36 
N.  E.  1065,  23  L.  R.  A.  846;  Ewing  v.  King,  169  Mass.  97,  47  N.  E. 
597.  See  Wilkinson  v.  Rutherford,  49  N.  J.  L,  244,  8  Atl.  507,  to  the 
same  effect  where  the  statute,  authorizing  suit,  did  not  provide  that 
it  should  be  in  the  receiver's  name.  In  Frank  v.  Morrison,  58  MJ. 
423,  the  court  states  the  Maryland  practice  to  be  to  allow  suits  in  the 
name  of  the  receiver,  regardless  of  statute. 

14  Wason  V.  Frank,  7  Colo.  App.  541,  44  Pac.  378  ("but  the  cases 
in  which  it  has  been  held  that  a  receiver  could  not  maintain  an  ac- 
tion in  his  own  name  were,  for  the  most  part,  cases  where  the  legal 

right   existed   in   his   principal  before   his   appointment In   his 

representative  capacity  he  was  the  real  party  in  interest;  the  suit 
could  be  brought  and  maintained  only  in  his  name"). 


{  182  EQUITABLE   REMEDIES.  360 

under  our  code."^'  In  many  of  the  states,  the  code  or 
statute  expressly  provides  that  the  suit  may  be  in  the 
name  of  the  receiver,  or  gives  such  general  authority  to 
sue  that  the  courts  construe  it  as  giving  such  power.^® 

§  182.  Appointment  cannot  be  Questioned  Collaterally. — . 
The  rule  is  well  established  that  the  regularity  of  the 
receiver's  appointment  cannot  be  attacked  collaterally 
in  suits  brought  by  him    as  receiver."     In  the  case  of 

15  Henning  v.  Eaymond,  35  Minn.  303,  29  N.  W.  132.  In  Davis  t. 
Ladoga  Creamery  Co.,  128  Ind.  222,  27  N.  E.  494,  it  is  said  the  suit 
cannot  be  in  the  name  of  the  corporation,  as  long  as  a  receiver  haa 
charge. 

16  Cockrill  V.  Abelea,  86  Fed.  505,  30  C.  C.  A.  223. 
See  statutes  collected,  ante,  note  to  §  73. 

California.— California  v.  Gray  (Cal.),  40  Pac.  959;  Tibbets  v.  Cohn 
&  Co.,  116  Cal.  365,  48  Pac.  372  (but  the  code  provision  was  not  ex- 
tended to  a  receiver  pendente  lite). 

Illinois. — Chicago  Fire  Proofing  Co.  v.  Park  Nat.  Bank,  145  111. 
481,  32  N.  E.  534. 

Indiana. — Manlove  v.  Burgess,  33  Ind.  211;  Hatfield  v.  Cummings, 
152  Ind.  2S0,  50  N.  E.  231;  Taylor  v.  Canaday,  155  Ind.  671,  57  N.  E. 
524,  59  N.  E.  20. 

Maine. — Hobart  v.  Bennett,  77  Me.  401. 

Minnesota. — Weland  v.  Hangan,  70  Minn.  349,  73  N.  W.  169. 

Missouri.— Gill  v.  Balis,  72  Mo.  424;  Alexander  v.  Eelfe,  74  Mo.  516. 

Montana. — Boston  &  M.  C.  C.  &  S.  M.  Co.  v.  Montana  etc.  Co.,  24 
Mont.  142,  60  Pac.  990. 

North  Carolina.— Gray  v.  Lewis,  94  N.  C.  392;  Weill  v.  First  Nat. 
Bank,  106  N.  C.  1,  11  S.  E,  277;  Davis  v.  Industrial  Mfg.  Co.,  114  N. 
C.  321,  19  S.  E.  371,  23  L.  E.  A.  322. 

Texas.- Mathis  v.  Pridham,  1  Tex.  Civ.  App.  5S,  20  S.  W.  1015. 

17  Fish  V.  Smith,  73  Conn.  377,  84  Am.  St.  Rep.  161,  47  Atl.  711 
(one  who  was  nominally  a  party  to  the  appointing  suit  cannot  so 
attack  it);  Com.  Nat.  Bank  v.  Burch,  141  111.  519,  33  Am.  St.  Eep. 
331,  31  N.  E.  420;  St.  Paul  Trust  Co,  v.  St.  Paul  Globe  Pub.  Co., 
60  Minn.  105,  61  N.  W.  813  (the  order  of  court,  empowering  the 
receiver  to  sue,  is  not  subject  to  such  attack);  Cox  v.  Volkert,  86 
Mo.  505;  Block  v.  Estes,  92  Mo.  318,  4  S.  W.  731;  Thompson  v.  Greeley, 
107  Mo.  577,  17  S.  W,  962;  Keokuk  N.  L.  P.  Co.  v.  Davidson,  13  Mo. 
App.  561;   Andrew  v.  Steel  City  Bank,  57  Neb.  173,  77   N.  W.  342; 


361  SUITS  BY  THE  KECEIVEB.  fi  182 

a  corporation  receiver,  suing  to  collect  unpaid  subscrip- 
tions, the  court  said:  "The  plaintiff's  appointment  aa 
receiver  cannot  be  attacked  collaterally.  The  regular- 
ity, propriety  and  validity  of  the  appointment  of  such 
a  receiver  can  only  be  questioned  in  a  direct  proceeding 
to  test  that  question  ;"^^  and  "when  a  judgment  debtor 
appears  before  a  referee  and  submits  to  an  examina- 
tion without  objection,  this  will  amount  to  a  waiver  of 
any  irregularity,  and  an  order  for  the  appointment  of 
a  receiver  founded  on  such  voluntary  appearance  and 
waiver  will  be  valid,  and  cannot  be  affected  by  an 
objection  to  the  jurisdiction  in  an  action  brought  by 
the  receiver."^®  The  supreme  court  of  Ohio  states: 
"It  must  be  borne  in  mind  that  he  was  an  acting 
receiver.  There  was  at  least  the  form  of  a  legal  ap- 
pointment, and  that  in  a  case  which  certainly  invoked 
the  discretion  and  consideration  of  the  court  in  the 
determination  of  the  question  whether  an  appoint- 
ment could  or  ought  to  be  made.  This  was  juris- 
diction. The  court  acted.  The  appointment  was  made. 
The  receiver  proceeded  to  the  discharge  of  the  duties 
of  the  trust.  This  is  not  a  direct  proceeding  to  test 
the  validity  or  regularity  of  the  appointment.  It  is 
not  a  proceeding  in  error  to  review  the  order  of 
appointment.  It  is  a  collateral  inquiry.  It  is  not 
enough  that  the  court  erred  in  its  action.  Unless 
it  appear  manifestly  clear  to  us  that  the  order  of  ap- 
pointment was  an  absolute  nullity  by  reason  of  the 
■entire  absence  of  jurisdiction  in  the  court  that  made  it, 
it  cannot  be  assailed  in  this  proceeding."2o 

Capital  City  Mut.  Fire  Ins.  Co.  v.  Boggs,  172  Pa.  St.  91,  33  Atl.  349; 
Elderkin  v.  Peterson,  8  Wash.  674,  36  Pac.  1089. 

18  Basting  v.  Ankeny,  64  Minn.  133,  66  N.  W.  266. 

19  Quoted  in  Green  v.  Bookhart,  19  S.  C.  466,  citing    Viburt    v. 
Frost,  3  Abb.  Pr.  119;    and  Bingham  v.  Disbrow,  37  Barb.  24. 

20  Barbour  v.  Nat.  Exch.  Bank,  45  Ohio  St.  133,  12  N.  E.  5.     See, 
.also,  Edee  v.  Strunk,  35  Neb.  307,  53  N.  W.  70. 


I  183  EQUITABLE   REMEDIES.  362 

If  the  order  appointing  the  receiver  is  absolutely 
void,  it  is  held  that  he  cannot  protect  himself  under  it, 
when  sued  for  money  collected  as  rent  from  the  prem- 
ises in  question.2^  It  is  necessary,  in  order  to  constitute 
a  valid  appointment,  that  the  appointing  court  have 
jurisdiction  of  the  subject  matter.22 

§  183.  Pleading  in  Suit  by  Receiver;  Must  Allege  His  Au- 
thority.— In  a  suit  by  a  receiver,  acting  as  he  does  in  a 
purely  representative  character,  it  is  necessary  for  him 
to  allege  in  the  complaint  the  authority  and  right  that 
entitles  him  to  maintain  the  action.^^  Thus  it  has 
been  frequently  held  that  "a  receiver,  in  order  to  main- 
tain an  action,  must  set  out  facts  showing  his  appoint- 
ment, and  by  what  jurisdiction  appointed;  setting  out, 
also,  so  much  erf  the  proceedings  in  the  cause  as  will 
show  that  his  appointment  is  legal,  as  the  defendant 
may  insist  that  the  facts  constituting  the  appointment 
as  receiver  which  are  set  out  shall  be  sufficient  to  show 
that  an  appointment  has  been  made,  and  that  these 
facts  must  be  so  stated,  and  with  such  certainty,  that 
they  may  be  traversed."^*     And  since  it  is  necessary 

21  Johnson  v.  Powers,  21  Neb.  292,  32  N.  W.  62;  approved,  but 
distinguished  and  limited,  in  Edee  v.  Strunk,  Hupra. 

22  See  cases  cited  supra  in  note  19,  and  Attorney-General  v.  Guard- 
ian M.  L.  I.  Co.,  77  N.  Y.  272. 

23  Daggett  V.  Gray  (Cal.),  4  Pac.  959;  Wheat  v.  Bank  of  Califor- 
nia. 119  Cal.  4,  50  Pac.  842,  51  Pac.  47;  Cooper  v.  Bowers,  42  Barb. 
87,  28  How.  Pr.  10  (supplementary  proceedings) ;  Forker  v.  Brown,  30' 
N.  Y.  Supp.  827,  10  Misc.  Kep.  161;  Swing  v.  White  River  Lumber  Co.^ 
91  Wis.  517,  65  N.  W.  174;  Worth  v.  Wharton,  122  N.  C.  376,  29  S.  E. 
370. 

24  Ehorer  v.  Middlesboro  Town  and  Land  Co.,  19  Ky.  Law  Rep. 
1788,  44  S.  W.  448.  See  Rossman  v.  Mitchell,  73  Minn.  198,  75  N. 
W.  1053,  stating:  "But  it  is  now  settled  by  the  weight  of  authority,. 
and  on  principle,  that  an  allegation  in  general  terms  by  the  plaintiflf,- 
Buing  as  receiver,  that  at  such  a  time,  in  such  an  action  or  proceeding, 
and  by  such  a  court  or  ofScer,  he  was  duly  appointed  rfcoiver  of  the 
©state  of  such  a  party^  is  sufficient,  and  that  anything  short  of  this 


363  SUITS  BY  THE  EECEIVER.  8  184 

for  the  receiver  to  obtain  leave  of  court  to  prosecute 
a  suit,  it  has  been  held  that  "a  complaint  filed  by  a  re- 
ceiver which  fails  to  allege  that  leave  of  the  court  to 
institute  and  prosecute  the  action  has  been  obtained  is 
fatally  defective, "^^^  So,  if  the  receiver  has  a  right  to 
sue  in  his  own  name,  it  is  said  he  should  allege  the 
source  of  that  right;  the  court  states:  "The  authority 
from  the  court  to  the  receiver  to  sue  in  his  own  name 
lies  at  the  very  basis  of  his  right  to  bring  the  action"; 
and  the  complaint  "must  show  by  proper  averments  that 
leave  of  court  to  institute  and  prosecute  the  action  has 
been  first  obtained."^^ 

§  184.  Same;  Appointment  and  Authority,  How  Alleged. 
The  rule  laid  down  by  the  cases  in  the  preceding  para- 
graph, as  to  the  particularity  with  which  a  receiver 
should  allege  his  authority,  has  not  been  universally 
followed;  in  many  cases  it  is  held  that  an  allegation 
that  the  plaintiff  was  "duly"  appointed  may  be  made  in 
general  terms.  Thus  it  is  said:  "It  never  was  neces- 
sary to  set  out  all  the  proceedings  by  which  a  receiver 
was  appointed,  but  merely  that  he  show  the  mode  of 
his  appointment."^^  It  is  said  that  "the  insertion  of  the 
word  'duly'  in  the  allegation  that  the  plaintiff  was  ap- 
pointed receiver,  gave  him  the  right  to  show  on  the 

is  not  sufficient."  See,  also,  "White  v.  Joy,  13  N.  Y.  83;  Bangs  v. 
Mcintosh,  23  Barb.  591;  Lever  v.  Bailey,  56  N.  J.  L.  54,  27  Atl.  799. 

25  Davis  V.  Ladoga  Creamery  Co.,  128  Ind.  222,  27  N.  E.  494,  citing 
Moriarty  v.  Kent,  71  Ind.  601;  approved  in  Ehodes  v.  Hilligoss,  16 
fnd.  App.  478,  45  N.  E.  666;  Hatfield  v.  Cummings,  142  Ind.  350,  39 
N.  E.  859.  See,  also,  Garver  v.  Kent,  70  Ind.  428;  Morgan  v.  Bucki^ 
30  Misc.  Kep.  245,  61  N.  Y.  Supp.  929. 

26  Hatfield  v.  Cummings,  142  Ind.  350,  39  N.  E.  859.  See,  also,  the 
cases  supra,  note  25. 

27  Stewart  v.  Beebee,  28  Barb.  34  ("it  was  sufficient  to  aver  that 
he  was  appointed  receiver,  the  court  by  which  the  appointment  wa» 
Biade,  and  the  date  of  the  order"). 


{   184  EQUITABLE   REMEDIES.  364 

trial  all  the  facts  conferring  jurisdiction."^'  And 
where  the  petition  alleged  that  the  applicant  was  ap- 
pointed receiver  in  certain  proceedings  named,  it  was 
held  a  sufficient  allegation  of  the  petitioner's  title.  "He 
was  not  bound  to  plead  each  step  in  the  proceeding  to 
show  his  appointment  was  valid.  That  could  be  proven 
on  the  hearing,  if  his  appointment  was  put  in  issue. "^^ 
It  is  also  maintained  that  "while  it  is  essential  to  the 
complaint  that  it  appear,  by  clear  and  express  aver- 
ment, that  the  receiver  was  authorized  by  the  court  to 
bring  the  action,  ....  it  is  not  necessary  that  the 
complaint  shall  show  that  the  receiver  had  specific  au- 
thority from  the  court  to  bring  this  particular  ac- 
tion."^" And  it  is  said  that  where  "it  does  not  appear 
from  the  record  that  he  did  not  have  such  leave,  and, 
when  the  plaintiff's  authority  to  bring  suit  is  not  de- 
nied or  disputed,  it  will  be  presumed  to  exist.  The 
plaintiff,  in  the  absence  of  any  denial  of  his  authority 
to  bring  such  suit,  is  not  required  to  allege  and  prove 
it."^^  This  was  held  to  be  true  in  Washington,  though 
the  receiver  was  suing  in  his  own  name.^^ 

28  Eockwell  V.  Merwin,  45  N.  Y,  166,  8  Abb.  Pr.,  N.  S.,  330. 

29  In  re  Beecher's  Estate,  19  N.  Y.  Supp.  971,  citing  the  cages, 
iupra,  in  notes  27  and  28.  See,  also,  Morgan  v.  Bucki,  30  Misc.  Rep. 
245,  61  N.  Y.  Supp.  .929;  Daggett  v.  Gray  (Cal.),  40  Pac.  959;  Wason 
V.  Frank,  7  Colo.  App.  541,  44  Pac.  378;  Nelson  v.  Nugent,  62  Minn. 
203,  64  N.  W.  392. 

30  Taylor  v.  Canaday,  155  Ind.  671,  57  N.  E.  524,  59  N.  E.  20.  The 
court  continued:  "It  is  good  if  it  is  shown  that  in  the  order  of  ap- 
pointment authority  to  sue  was  suiEciently  broad  to  authorize  the 
receiver  to  institute  and  prosecute  such  suits  as  become  necessary 
and  proper  for  the  collection  of  the  assets  and  for  obtaining  posses- 
sion of  the  property  over  which  he  has  charge." 

31  Howard  v.  Stephenson,  33  W.  Va.  116,  10  S.  E.  66;  approved 
in  Elliott  V.  Trahern,  35  W.  Va.  634,  14  S.  E.  223.  See,  also,  Boyd 
V.  Royal  Ins.  Co.,  Ill  N.  C.  372,  16  S.  E.  387;  Worth  v.  Wharton,  122 
N.  C.  376,   29   S.  E.   370. 

32  Hardin  v.  Sweeney,  14  Wash.  129,  44  Pac.  138;  approved  in 
Compton  V.  Schwabacker  etc.  Co.,  15  Wash.  306,  46  Pac.  338. 


365  SUITS  BY  THE  RECEIVER.  8  185 

§  185.  Proof  by  Receiver  of  His  Appointment  and  Powers. 
When,  in  a  proper  proceeding,  the  authority  of  a  re- 
ceiver to  act  is  questioned,  he  should  prove  his  appoint- 
ment and  powers,  as  any  fact  would  be  proved,  the 
proper  and  general  course  being  to  produce  a  copy  of 
the  order  appointing  him  and  defining  his  rights.^^ 
In  the  case  of  a  suit  by  corporation  receivers  it  was 
said:  "Their  alleged  appointment  as  receivers  is  de- 
nied by  the  answer.  The  only  proof  that  could  be  made 
is  a  certified  copy  of  the  prder  of  dissolution  and  the 
appointment  of  receivers.  That  not  having  been  filed, 
the  court  could  not  recognize  their  authority  to  bring 
this  action  and  invoke  the  equitable  jurisdiction  of  the 
court."^*  Such  certified  copy  is  generally  considered 
conclusive  evidence  of  the  regularity  of  the  proceedings 
and  prima  facte  evidence  of  the  jurisdiction  of  the  court 
appointing  the  receiver.^^  And  where  the  jurisdiction 
of  the  appointing  court  was  questioned,  and  the  cer- 
tified copy  of  the  order  did  not  show  that  an  action 
had  been  commenced,  the  court  said :  "It  was  necessary 
to  prove  the  commencement  of  the  action,  and  that  the 
court  obtained  jurisdiction  over  the  corporation,  .... 
to  sustain  the  allegation  that  the  plaintiff  was  duly  ap- 
pointed receiver."^® 

83  Frank  v.  Morrison,  58  Md.  423;  Seymour  v.  Newman,  77  Mo. 
App.  578;  Potter  v.  Merchants'  Bank,  28  N.  Y.  641,  86  Am.  Dec.  273 
(the  pendency  of  an  action  resulting  in  the  receivership  may  be 
proved  by  its  recitals  in  the  appointing  order).  See  for  a  case  where 
the  defendant  was  estopped  by  the  fact  that  the  appointment  had 
been  declared  valid  in  prior  proceedings  between  the  parties,  Griflfin 
V.  Long  Island  R.  Co.,  102  N.  Y.  449,  7  N.  K  735.  See,  also,  Scott 
V.  Buncombe,  49  Barb.  73. 

34  Pearson  v.  Leary,  126  N.  C.  504,  36  S.  E.  35,  127  N.  C.  114,  37 
8.  E.  149. 

35  Wright  V.  Nostrand,  94  N.  Y.  32,  and  cases  cited  supra,  in  note 
33. 

38  Spings  V.  Bowery  Nat.  Bank,  63  Hun,  505,  18  N.  Y.  Supp.  574, 
where  the  receiver  failed  to  prove  that  he  had  filed  the  bond  required 


i  186  EQUITABLE    REMEDIES.  366 

§  186.  Receiver  is  Subject  to  the  Same  Defenses  as  the 
One  Whom  He  Represents. — It  is  generally  held  that  a  re- 
ceiver can  occupy  no  better  position  than  those  for 
whom  he  acts  and  is  appointed  f^  that  he  is  in  the 
place  of  the  ones  he  represents,  and  has  only  such  rights 
as  they  had,  so  that  the  rights  and  liabilities  of  third 
parties  are  not  increased,  diminished  or  varied  by  his 
appointment.  There  passes  to  the  receiver  the  prop- 
erty and  rights  of  the  one  from  whom  he  takes,  pre- 
cisely in  the  same  condition  and  subject  to  the  same 
equities  as  before  his  appointment,"^  and  any  defense 
good  against  the  original  party  is  good  against  the 
receiver.^^     This  is  true  in  the  case  of  a  receiver  who 

by  law,  but  had  been  subsequently  authorized  to  sue,  the  court  said: 
"It  is  a  reasonable  inference  that  the  court,  when  it  granted  the 
order  to  sue,  was  apprised  of  the  facts  affecting  the  plaintiffs'  right 
to   bring  the   action,   and   ascertained   that   he   had   duly   qualified   as 

receiver The  question  is  not  as  to  the  weight  of  evidence  but 

whether  there  was  any  evidence  tending  to  show  that  the  bond  was 
filed";  Hegewisch  v.  Silven,  140  N.  Y.  414,  35  N.  E.  658. 

37  Bell  V.  Shibley,  33  Barb.  614  ("it  has  been  repeatedly  held  that 
a  receiver  is  subject  to  all  the  rights  and  equities  existing  against 
the  company");  Cooper  v.  Bowers,  42  Barb.  87,  28  How.  Pr.  10; 
Falkenbach  v.  Patterson,  43  Ohio  St.  359,  1  N.  E.  757;  Cox  v.  Volkert, 
68  Mo.  505,  511. 

38  Van  Wagoner  v.  Paterson  Gas  Light  Co.,  23  N.  J.  L.  285. 

39  Casey  v.  La  Societe  de  Credit  Mobilier,  2  Woods,  77,  Fed.  Cas. 
No.  2496;  Tyler  v.  Hamilton,  62  Fed.  187  (and  therefore,  in  the  ab- 
sence of  fraud,  he  cannot  avoid  the  contracts  of  the  corporation  he 
represents);  Mayer  v.  Thomas,  97  Ga.  772,  25  S.  E.  761;  Hatch  v. 
Johnson,  79  Fed.  828,  836;  Perry  v.  Godbe,  82  Fed.  141  (thus  he  may 
be  bound  by  statements  made  in  a  complaint  filed  by  the  corporation 
before  his  appointment);  Bell  v.  Hanover  Nat.  Bank,  57  Fed.  822; 
Security  Title  &  Trust  Co.  v.  Schlender,  170  111.  609,  60  N.  E.  854; 
State  V.  Sullivan,  120  Ind.  197,  21  N.  E.  1095,  22  N.  E.  325;  Wardle 
v.  Hudson,  96  Mich.  432,  55  N.  W.  992;  Kuser  v.  Wright,  52  N.  J. 
Eq.  825,  31  Atl.  397;  Little  v.  Garabrant,  90  Hun,  404,  35  N.  Y.  Supp. 
€89;  Capital  City  Mut.  Fire  Ins.  Co.  v,  Boggs,  172  Pa.  St.  91,  33  Atl. 
349;  Shuey  v.  Holmes,  20  Wash.  13,  54  Pac.  540;  State  v.  Thum,  6 
Idaho,  323,  55  Pac.  858  (not  allowed  to  recover  money  held  in  trust 
by  the  bank  he  represents). 


367  BUITS  BY  THE  EECEIVER.  §  18f 

represents  a  corporation;  the  court  saying:  "He  is  as 
much  bound  by  a  settlement  which  the  company  was 
authorized  to  make  as  was  the  company  itself.  It 
would  be  strange,  indeed,  if  the  legal  acts  of  a  corpora- 
tion did  not  bind  the  receiver  of  its  effects.  If  the 
rule  were  not  so  no  one  would  dare  venture  to  deal  with 
a  corporation."***  But  in  those  cases  where  the  receiver 
is  held  to  represent,  not  only  the  corporation,  but  also 
the  creditors,  whose  rights  he  is  bound  to  protect,  he 
may  avail  himself  of  any  of  those  rights,  and  is  not 
subject  to  defenses  that  would  not  be  good  against  the 
creditors.*^ 

§  187.  Set-off  Against  the  Receiver — In  General. — As 
stated  in  a  preceding  paragraph,  the  general  rule  is 
that  a  receiver  acquires  no  greater  interest  in  an  estate 
than  the  one  from  whom  he  takes,  and  it  follows  that 
choses  in  action  pass  to  him  subject  to  any  right  of  set- 
off existing  at  the  time  of  his  appointment.*^     But  the 

40  Hyde  v.  Lynde,  4  N.  Y.  387.  In  McLaren  v.  First  Nat.  Bank 
of  Milwaukee,  76  Wis.  259,  45  N.  W.  223,  the  court  states  it  as  fol- 
lows: "The  result  is  that  we  must  regard  the  plaintiff  [receiver]  as 
standing  in  the  shoes  of  the  carriage  company,  and  as  having  no 
more  right  to  recover,  as  against  the  bank,  than  the  carriage  com- 
pany would  have  had."  See,  also,  Ross  v.  Meehan  Brake  Shoe 
Foundry  Co.  v.  Southern  M.  L.  Co.,  72  Fed.  957;  Moise  v.  Chapman, 
24  Ga.  249. 

41  Atwater  v.  Stromberg,  75  Minn.  277,  77  N.  W.  963.  In  Mc- 
Laren V.  First  Nat.  Bank  of  Milwaukee,  76  V^is.  259,  45  N.  W.  2'23, 
it  is  said:  "If  the  plaintiff  [receiver]  should  make  it  appear  that  he 
in  fact  represents  creditors  of  the  carriage  company  existing  at  the 
time  of  the  misappropriation,  then  it  may  be  he  can  make  a  case 
entitling  him  to  recover  as  such  receiver."  See,  also,  Applcton  v. 
Turnbull,  84  Me.  72,  24  Atl.  592.  See  this  subject  discussed  further, 
post,   §   190. 

42  Fisher  v.  Knight,  61  Fed.  491,  9  C.  C.  A.  582,  17  U.  S.  App.  502; 
Wheaton  v.  Daily  Tel.  Co.  (C.  C.  A.),  124  Fed.  61;  Jefferson  v.  Edring- 
ton,  .53  Ark.  545,  14  S.  W.  99,  903;  Balch  v.  Wilson,  25  Minn.  299; 
quoted  approvingly  in  Yardley  v.  Clothier,  49  Fed.  at  341;   Grant  v. 


i  188  EQUITABLE   REMEDIES.  36» 

right  of  set-off  must  exist  before  the  receiver  is  ap- 
pointed, for  "when  a  receiver  is  appointed,  the  accounts 
of  the  insolvent  are  closed,  and  no  changes  can  there- 
after be  made  by  any  assignments  of  credits  against 
the  estate;  as  this,  if  allowed,  would  injure  the  trust 
fund,  and  defeat  the  ratable  distribution  to  which  each 
creditor  is  entitled."*^  The  supreme  court  of  Pennsyl- 
vania has  said:  "Now,  if  each  creditor  be  allowed  to 
purchase  goods  at  the  receiver's  sale,  and  pay  for  them 
by  a  set-off,  we  can  readily  see  how,  at  least,  this  part  of 
the  proceedings  of  a  court  of  equity  might  degenerate 
from  a  regular  and  orderly  process  to  a  mere  scramble 
for  the  debtor's  goods."^* 

§  188.  Set-off  by  Bank  Depositor. — The  principles  in- 
volved in  a  set-off  against  a  receiver  have  received  par- 
ticular application  in  the  case  of  receivers  of  insolvent 
banks,  when  suing  parties  who  had  money  on  deposit 
at  the  bank  when  it  became  insolvent.  It  is  said  to  be 
well  settled  that  in  a  suit  by  a  receiver  of  an  insolvent 
bank  upon  a  note  or  obligation  due  the  bank,  the  de- 
fendant will  be  allowed  to  set  off  his  deposit  or  certif- 
icate of  deposit  held  by  him  at  the  time  of  the  sus- 

Buckner,  49  La.  Ann.  668,  21  South.  580;  Mercantile  Nat.  Bank  v. 
McFarlane,  71  Minn.  497,  70  Am.  St.  Eep.  352,  74  N.  W.  287.  The 
right  of  set-off  is  said  to  be  within  the  statute  of  1888  allowing  suits 
against  federal  receivers  without  leave  of  court:  Grant  v.  Buckner, 
172  U.  S.  232,  19  Sup.  Ct.  163,  43  L.  ed.  430. 

43  In  re  Hamilton,  26  Or.  579,  33  Pae.  1088.  See,  also,  Chicago 
Arch.  Iron  Works  v.  McKey,  93  111.  App.  244  ("a  claim  of  the  debtor, 
accruing  before  the  receiver  was  appointed,  cannot  be  set  off  against 
a  claim  accruing  after  the  receiver  was  appointed,  and  therefore  due 
the  receiver  and  not  the  insolvent");  Van  Dyck  v.  McQuade,  85  N. 
Y.  617;  U.  S.  Bung  Mfg.  Co.  v.  Armstrong,  34  Fed.  94  (the  existence 
of  cross-demands  or  independent  debts  which  could  have  been  set 
off  at  law,  had  they  been  asserted  at  the  proper  time,  cannot  be  as- 
serted in  equity). 

44  Singerly  v.  Fox,  75  Pa.  St.  112. 


S69  SUITS  BY  THE  RECEIVER.  I  181 

pension  of  the  bank.^'  But  in  order  to  avail  himself 
of  the  right  of  set-off,  the  defendant  must  have  acquired 
his  right  before  the  insolvency  of  the  bank,  as  other- 
wise the  transaction  may  be  void  as  in  fraud  of  cred- 
itors.^^  And  it  has  been  held  that  where  a  receiver  sued 
a  stockholder  of  an  insolvent  bank  for  unpaid  subscrip- 
tions, the  stockholders'  deposit  could  not  be  set  off,  the 

court  saying:  "They  are  not  in  the  same  right 

To  permit  him  to  set  off  the  debt  due  him  would,  where 
the  corporation  is  insolvent,  manifestly  give  him  a  pref- 
erence as  a  creditor.  To  this  he  is  not  entitled.  It 
is  the  right  of  the  other  creditors  to  have  him  pay  in 
the  money  due  from  him  for  stock  as  part  of  the  fund 
for  the  payment  of  debts."^'^  There  has  been  some  con- 
flict in  the  decisions  as  to  whether  the  right  of  set-off 
existed  when  the  note  on  which  the  receiver  was  suing 
did  not  mature  until  after  his  appointment;  the  right 
was  denied  in  a  federal  case,  stating :  "When  the  plain- 
tiff was  appointed  receiver,  the  defendant  was  in  the 
list  of  unsecured  depositors,  to  whom  payment,  the  bank 
being  insolvent,  was  prohibited.  The  defendant  had 
thus  no  right  of  set-off,  nor  any  equity  against  its  note, 
not  then  matured,  which  passed  to  the  receiver.     To 

46  Scott  V.  Armstrong,  146  U.  S.  499,  13  Sup.  Ct.  148,  36  L.  ed. 
1059;  Snyder  v.  Armstrong,  37  Fed.  18  (see  the  case  for  a  discussion 
of  the  earlier  cases) ;  State  v.  Brobston,  94  Ga.  95,  47  Am.  St.  Rep. 
138,  21  S.  E.  146;  Miller  v.  Receiver  of  the  Franklin  Bank,  1  Paige, 
444;  Davis  v.  Industrial  Mfg.  Co.,  114  N.  C.  321,  19  S.  E.  371,  23 
L.  R.  A.  322.  See  the  statement  in  Hade  v.  McVay,  31  Ohio  St. 
231,  though  the  set-oflE  was  not  allowed  by  reason  of  a  statute;  Arm- 
strong V.  Warner,  49  Ohio  St.  376,  31  N.  E.  877,  17  L.  R.  A.  466; 
Clarke  v.  Hawkins,  5  R.  I.  219. 

46  Stone  V.  Dodge,  96  Mich,  514,  56  N.  W.  75,  21  L.  R.  A.  280 
(the  case  contains  a  full  review  of  the  authorities  on  the  subject); 
Venango  Nat.  Bank  v.  Taylor,  56  Pa.  St.  14;  Smith  v.  Mosby,  9 
Heisk.    501. 

47  Williams  v.  Traphagen,  38  N.  J.  Eq.  57. 

Equitable  Remedies,  VoL  I — 24 


I  183  EQUITABLE   REMEDIES.  •  370 

allow  the  setoff,  now  that  the  note  has  matured,  and 
thereby  make  payment  in  full  to  the  defendant  in  part 
discharge  of  its  obligation  to  the  bank,  would  be  con- 
trary, not  only  to  the  policy  of  the  law,  but  also  to  the 
plain  meaning  of  its  provisions."^^  But  the  decision 
was  reversed  by  the  United  States  supreme  court,  and 
the  weight  of  authority  seems  to  be  to  the  effect  that 
the  fact  that. the  claim  thus  held  does  not  mature  until 
after  the  receiver's  appointment,  does  not  prevent  the 
defendant  from  using  it  as  a  set-off.^® 

48  Armstrong  v.  Scott,  36  Fed.  63,  citing  Venango  Nat.  Bank  v. 
Taylor,  56  Pa.  St.  14;  the  case  was  followed  in  Stephen  v.  Schuck- 
man,  32  Mo.  App.  333.  It  was  reversed  by  the  United  States  su- 
preme court  in  Scott  v.  Armstrong,  146  U.  S.  499,  13  Sup.  Ct.  148, 
36  L.  ed.  1059,  after  having  been  disapproved  by  Yardley  v.  Clothier, 
49  Fed.  337,  which  has  been  favorably  received. 

49  See  Scott  v.  Armstrong,  146  U.  S.  499,  13  Sup.  Ct.  148,  36  L.  ed. 
1059.  The  case  of  Colton  v.  Drovers  Perpetual  Bldg.  &  Loan  Assn.  of 
Baltimore,  90  Md.  85,  78  Am.  St.  Eep.  431,  45  Atl.  23,  46  L.  E.  A. 
388,  contains  such  a  clear  presentation  of  the  principles  involved  that 
I  quote  from  it  at  length — Boyd,  J.:  "But  it  is  said  on  behalf  of 
the  appellants  that,  inasmuch  as  the  note  fell  due  after  the  appoint- 
ment of  the  first  receiver,  he  took  it  free  from  all  equities,  just  as 
a  bona  fide  purchaser  would  have  done,  and  that  a  claim  in  favor 
of  the  bank  which  did  not  mature  until  in  the  hands  of  the  receiver 
is  not  subject  to  a  set-off  by  a  claim  which  existed  against  the  bank 
before  the  receiver's  rights  accrued;  in  short,  that  in  one  case  the 
debt  is  due  by  the  bank  to  the  customer,  and  in  the  other  by  the 
customer  to  the  receiver.  If  that  were  strictly  correct,  there  would 
be  some  ground  for  the  contention;  for  if,  for  example,  the  appellee 
had  purchased  some  property  from  the  receiver,  it  would  not  be 
permitted  to  set  off  its  claim  against  such  indebtedness  to  the  re- 
ceiver, for  it  would  thereby  not  only  obtain  an  unwarranted  prefer- 
ence over  other  creditors,  but  it  would  prevent  a  proper  settlement 
of  the  involved  estate,  and,  moreover,  they  would  not  be  mutual 
claims.  But  when  the  receiver  was  appointed,  he  took  the  assets  of 
the  bank,  and  among  those  assets  was  this  note.  It  was  a  debt 
already  incurred  by  the  appellee  and  the  bank.  Although  there  are 
some  authorities  to  the  contrary,  the  great  weight  of  authority  is 
to  the  effect  that  the  fact  that  the  claim  thus  held  by  the  receiver 
does  not  mature  until  after  his  appointment  does  not  prevent  a 
defemlant  from  using  his  claim  as  a  set-off,"     Among  other  decisions 


371  SUITS  BY  THE  KECEIVER.  I  189 

§  189.  Set-off  Against  Corporation  Receiver,  in  Suit  Against 
Stockholders. — In  the  case  of  a  receiver  of  an  insolvent 
corporation,  suing  in  behalf  of  its  creditors  to  enforce 
the  liability  of  the  stockholders,  the  defendant  cannot 
set  off  a  claim  that  is  good  against  the  corporation 
only.^*'  Where  the  action  was  for  their  unpaid  sub- 
scription the  court  said:  "They  are  debtors  to  the  full 
amount  subscribed  by  them,  and  cannot  be  allowed  to 
appropriate  any  part  of  the  fund  belonging  to  the  other 
creditors  till  their  liability  has  been  paid."^^  And 
where  a  stockholder  was  indebted  to  the  corporation 
for  misappropriation  of  funds,  and  the  receiver  had  a 
surplus  to  divide  among  the  stockholders,  he  was  al- 
lowed to  set  off  the  amount  due  the  corporation  against 
the  distributive  share  of  the  stockholder.^*     But  where 

are  Berry  v.  Brett,  6  Bosw,  627;  Scott  v.  Armstrong,  146  U.  S.  499, 
13  Sup.  Ct.  148,  36  L.  ed.  1059;  Piatt  v.  Bently,  11  Am.  Law  Eeg., 
N.  S.,  171;  In  re  Hatch,  155  N.  Y.  401,  50  N.  E.  49,  40  L.  E.  A. 
664;  Northampton  Bank  v.  Balliet,  8  Watts  &  S.  311,  42  Am,  Dec. 
297;  Aldrich  v.  Campbell,  4  Gray,  284;  Smith  v.  Spingler,  83  Mo. 
408;  McCagg  v.  Woodman,  28  111.  84;  Armstrong  v.  Warner,  49  Ohio 
St.  376,  31  N.  E.  877,  17  L.  K.  A.  466;  Yardley  v.  Clothier,  2  C.  C.  A. 
349,  51  Fed.  506,  17  L.  K.  A.  462;  Skiles  v.  Houston,  110  Pa.  St.  254, 
2  Atl.  30.  See,  also,  Pera  v.  Wickham,  135  N.  Y,  223,  31  N.  E.  1028, 
17  L.  K.  A.  456. 

The  federal  courts  have  not  been  harmonious  on  the  question  of 
whether  the  set-off  should  be  allowed  in  equity,  or  at  law;  their  con- 
clusion being  influenced  largely  by  statute.  The  case  of  Yardley  v. 
Clothier,  49  Fed,  337,  contains  a  full  discussion  of  the  question. 
See,  also,  Scott  v.  Armstrong,  146  U.  S.  499,  13  Sup.  Ct.  148, 
36  L.  ed,  1059;  Armstrong  v.  Scott,  36  Fed.  63;  Louis  Snyder's  Sons 
V,  Armstrong,  37  Fed.  18;  Adams  v.  Spokane  Drug  Co.,  57  Fed. 
888,  23  L.  E.  A.  334;  approving  Yardley  v.  Clothier  in  preference  to 
Armstrong  v.  Scott;  Hale  v.  McVay,  31  Ohio    St.  231. 

50  Sheafe  v.  Larimer,  79  Fed.  921,  distinguishing  the  cases  where 
set-off  is  allowed  on  a  bank  deposit;  Wallace  v.  Hood,  89  Fed.  11 
(refusing  to  allow  a  cross-petition  for  false  representation  upon  the 
sale  of  the  stock  to  defendant), 

51  Bain  v,  Clinton  Loan  Assn.,  112  N.  C.  248,  17  S.  E.  154. 

5  2  Merrill  v.  Cape  Ann.  Granite  Co.,  161  Mass.  212,  36  N.  E.  797, 
23  L.  E.  A.  313. 


{  190  EQUITABLE   REMEDIES.  873 

the  stockholder  had  actually  advanced  money  to  pre- 
vent a  burdensome  assessment  on  the  stockholders,  he 
was  allowed  to  set  it  off  against  his  unpaid  subscrip- 
tion on  the  ground  that  the  real  assets  would  not  be 
diminished  by  such  payment.^* 

§  190.  Statutory  Receiver  of  Insolvent  Corporation  Rep- 
resents Its  Creditors — The  general  rule  that  a  receiver 
takes  the  title  of  the  individual  or  corporation  whose 
receiver  he  is,  and  that  any  defense  which  would  have 
been  good  against  the  former  may  be  asserted  against 
the  latter,  is  subject  to  two  important  and  well-recog- 
nized exceptions.  The  first  of  these  relates  to  receivers 
of  insolvent  corporations,  appointed  under  the  varying 
terms  of  the  statutes  for  the  purpose  of  winding  up 
their  affairs.  Such  a  receiver,  it  is  almost  universally 
held,  "is  to  be  regarded  as  the  representative,  not  only 
of  the  corporation,  having  power  of  asserting  its  rights, 
taking  its  title  and  subject  to  its  liabilities,  but  occu- 
pies a  still  broader  position,  for  he  represents  not  only 
the  corporation,  but  also  its  creditors;  and  under  his 
duties  as  representative  of  the  latter  class  he  is  in- 
vested with  powers  and  may  do  acts  that  could  not  be 
done  by  a  mere  representative  of  the  corporation."^* 

63  Bausman  v.  Denney,  73  Fed.  69.  See,  also,  Van  Wagoner  etc 
T.  Paterson  Gas  Light  Co.,  23  N.  J.  L.  283. 

64  Peabody  v.  New  England  Waterworks  Co.,  184  HI.  625,  75  Am. 
St.  Rep,  195,  56  N.  E.  957,  reviewing  many  cases;  Hamor  v.  Engineer- 
ing Co.,  84  Fed.  393;  Bayne  v.  Brewer  Pottery  Co.,  90  Fed,  754;  In 
re  Wilcox  etc.  Co.,  70  Conn.  220,  39  Atl.  163;  Franklin  Nat,  Bank  v. 
Whitehead,  149  Ind,  560,  63  Am.  St.  Eep.  302,  49  N,  E.  592,  39  L.  E. 
A.  725;  Farmers'  Loan  v.  Trust  Co,  v,  Minneapolis  etc.  Works,  35 
Minn,  543,  29  N.  W.  349;  Minnesota  Thresher  Mfg.  Co.  v.  Langdon, 
44  Minn.  37,  46  N.  W.  310;  Alexander  v.  Relfe,  74  Mo.  516,  9  Mo. 
App,  133;  Werner  v.  Murphy,  60  Fed.  769,  reviewing  New  Jersey 
eases;  Mechanics'  Nat.  Bank  v,  Pennsylvania  Steel  Co.,  57  N.  J.  L. 
336,  30  Atl.  545;  Gillett  v.  Moody,  3  N.  Y.  479;  Curtis  v.  Leavitt,  15 
N.  Y.  45    (a  leading   case);  Pittsburgh  Carbon  Co.  v.  McMillan,  119 


373  SUITS  BY  THE  RECEIVER.  S  190 

Since  he  stands  before  the  court  invested  with  all  the 
rights  and  equities  of  the  creditors  of  the  insolvent 
corporation,  it  is  especially  his  duty  to  avoid  any  act 
of  the  corporation  committed  in  fraud  of  those  rights 
and  equities.^^  "It  is  of  no  importance,  so  far  as  the 
present  discussion  is  concerned,  whether  such  agent  of 
the  law  takes  the  technical  title  to  the  debtor's  prop- 
erty, or  takes  only  the  possession  of  it  In  either  case 
he  is  the  sole  agent,  through  whom,  and  through  whom 
alone,  as  a  general  rule,  the  rights  of  creditors  can  be 
protected  and  enforced;  and,  in  protecting  and  enforc- 
ing those  rights,  he  is  the  representative  of  creditors, 
and  not  of  the  debtor" ;  and  this  is  especially  true  where 
the  statute  suspends  the  rights  of  the  creditors  to  attach 
or  levy  upon  the  corporate  property  after  the  appoint- 
ment  of   the   receiver.^^     Some   limitations   on    these 

N.  Y.  46,  23  N.  E.  530,  7  L.  R.  A.  46;  Bien  v.  Bixby,  18  Misc.  Rep. 
415,  41  N.  Y.  Supp.  433;  Cheney  v.  Maumee  Cycle  Co.,  64  Ohio  St. 
205,  60  N.  E.  207;  Cole  v.  Satsop  R.  R.  Co.,  9  Wash.  487,  43  Am.  St. 
Rep.  858,  37  Pac.  700.  "The  effect  of  the  appointment  and  the 
Beiaure  of  the  property  by  the  receiver  was  to  fasten  the  claims  of 
creditors  upon  it,  and  to  give  that  officer  control  over  it  for  the  bene- 
fit of  creditors;  and  in  this  respect  his  relation  to  it  was,  for  all  prac- 
tical purposes,  the  same  as  that  which  an  assignee  would  have  had. 
The  property  thus  sequestered  was  held  by  the  receiver  as  effectu- 
ally as  an  assignee  could  have  held  it,  or  as  creditors  could  have  held 
it  by  attachment  or  levy.  In  no  other  way  than  through  him 
could  the  right  of  creditors  be  worked  out,  and  in  this  aspect  of  the 
case  he  represented  the  creditors,  rather  than  the  debtor":  Cheney  v. 
Maumee  Cycle  Co.,  64  Ohio  St.  205,  60  N.  E.  207,  holding  that  a  mort- 
gage of  the  corporation's  land  unrecorded  before  the  appointment  of 
the  receiver  was  not  a  valid  lien  as  against  him.  To  the  effect  that 
for  the  benefit  of  creditors  a  receiver  may  sue  the  directors  for  di- 
verting the  assets,  see  Hays  v.  Pierson  (N.  J.  Eq.),  58  Atl.  728. 

55  Werner  v.  Murphy,  60  Fed.  769  (creditor  of  the  corporation  can- 
not sue  to  set  aside  fraudulent  conveyance  on  the  mere  refusal  of 
the  receiver  to  do  so). 

56  In  re  Wilcox  etc.  Co.,  70  Conn.  220,  39  Atl.  163;  Farmers'  Loan 
t<c  T.  Co.  V.  Minneapolis  etc.  Works,  35  Minn.  543,  546,  29  N.  W. 
3-lt).     ' '  The    pendency    of   the   proceedings    disables   the    creditors   to 


§  190  EQUITABLE    REMEDIES.  374 

broad  assertions  of  the  receiver's  character  as  repre- 
sentative of  the  creditors  are  noticed  hereafter.^^ 

go  on,  each  in  his  own  behalf,  to  enforce  his  claim  by  action,  judg- 
ment, execution,  and  levy.  So  that,  unless  all  the  rights  of  the  credi- 
tors can  be  enforced  in  this  proceeding,  unless  their  right  to  avoid 
transfers  can  be  made  available  by  means  of  it,  then  it  is,  to  some 
extent,  an  obstruction,  rather  than  a  remedy,  to  them." 

57  See  post,  chapter  on  Creditors'  Bills.  In  Eepublic  Life  Ins. 
Co.  V.  Swigert,  135  111.  150,  167,  177,  25  N.  E.  680,  685,  688,  12 
L.  R.  A.  328,  it  was  said:  "We  understand  the  rule  to  be,  that  where 
a  receiver  is  appointed  for  the  purpose  of  taking  charge  of  the  prop- 
erty and  assets  of  a  corporation,  he  is,  for  the  purpose  of  determining 
the  nature  and  extent  of  his  title,  regarded  as  representing  only  the 
corporate  body  itself,  and  not  its  creditors  or  shareholders,  being 
vested  by  law  with  the  estate  of  the  corporation,  and  deriving  his  own 
title  under  and  through  it;  and  that  for  purposes  of  litigation  he 
takes  only  the  rights  of  the  corporation  such  as  could  be  asserted  in 
its  own  name,  and  that  upon  that  basis  only  can  he  litigate  for  the 

benefit  of  either  shareholders  or  creditors But,  so  far  as   his- 

powers  are  derived  from  a  statute,  or  from  a  lawful  decree  of  court, 
and  the  powers  do  not  involve  rights  which,  at  the  time  of  his  ap- 
pointment, were  vested  in  such  owners,  he  is  not  merely  their  repre- 
sentative, but  is  the  instrument  of  the  law,  and  the  agent  of  the 
court  which  appointed  him.  Such  right  and  authority  as  the  law  and 
the  court  rightfully  give  him  he  possesses,  and  in  respect  to  such  right 
he  is  not  circumscribed  and  limited  by  the  right  which  was  vested  in 
and  available  to  the  owners."  See,  also,  as  supporting  or  tending^ 
to  support  a  similar  view,  Fairbanks  v.  Farwell,  141  m.  354,  30  N.  E. 
1056;  Gottlieb  v.  Miller,  154  111.  44,  39  N.  E.  992;  Ray  v.  First  Nat. 
Bank,  111  Ky.  377,  63  S.  W.  762;  Smith  v,  Johnson,  57  Ohio  St.  486, 
49  N.  E.  693;  McLaren  v.  First  Nat.  Bank,  76  Wis.  259,  45  N.  W.  223. 
The  doctrine  of  the  Illinois  courts  seems  to  have  been  brought  into- 
closer  accord  with  that  generally  prevailing  by  the  later  case  of  Pea- 
body  V.  New  England  Waterworks  Co.,  184  111.  625,  75  Am.  St.  Rep. 
195,  56  N.  E.  957,  supra,  note  54. 

On  the  general  subject  of  the  representative  capacity  of  the  cor- 
poration receiver,  see,  also.  Porter  v.  Sabin,  149  U.  S.  473,  13  Sup.. 
Ct.  1008,  37  L,  ed.  818;  Movius  v,  Lee,  30  Fed.  298;  Crandall  v.  Lin- 
coln, 52  Conn.  73,  52  Am.  Rep.  560;  Greene  v.  A.  &  W.  Sprague  Mfg. 
Co.,  52  Conn.  330;  Davenport  v.  Lines,  72  Conn.  118,  44  Atl.  17;  Ameri- 
can T.  and  Sav.  Bank  v.  McGettigan,  152  Ind.  582,  71  Am.  St.  Rep. 
345,  52  N.  E.  793  (action  by  receiver  on  behalf  of  creditors  not  al- 
lowed, when  not  for  the  benefit  of  all  the  creditors);  Holden  v.  Phelps^ 
135  Mass.  61;  Thompson  v.  Greeley,  107  Mo.  577,  17  S.  W.  962;  Har- 
rington T.  Connor,  51  Neb.  214,  70  N.  W.  911;  Stokes  v.  New  Jersey 


375  SUITS  BY  THE  EECEIVEE.  §  191 

§  191.  Receiver  in  Supplementary  Proceedings,  How  Far 
a  Representative  of  Creditors. — A  receiver  in  proceedings 
supplemental  to  execution  is  also,  in  some  respects,  a 
representative  of  and  trustee  for  the  creditors  at  whose 
instance  he  was  appointed,^^  especially  for  the  purpose 
of  attacking  conveyances  by  the  debtor  made  in  fraud 
of  their  rights.^^  ^'For  this  purpose  he  represents  and 
stands  in  place  of  the  creditor,  and  prosecutes  the  ac- 
tion in  his  behalf.  The  right  to  maintain  the  action 
does  not  depend  upon  any  succession  by  the  receiver  to 
the  title  of  the  debtor,  but  upon  the  equitable  right  of 

Pottery  Co.,  46  N.  J.  L.  237  (may  attack  judgment  by  confession 
against  the  corporation);  Williams  v.  Boiee,  38  N.  J.  Eq.  364  (suit  to 
recover  improperly  paid  dividends) ;  Williams  v.  McKay,  40  N.  J.  Eq. 
]89,  53  Am.  Eep.  775;  Graham  Button  Co.  v.  Spielman,  50  N,  J.  Eq. 
120,  24  Atl.  571;  Beebe  v.  George  H.  Beebe  Co.,  64  N,  J.  L.  497,  46  Atl. 
368;  Southard  v.  Benner,  72  N.  Y.  424;  Whittlesey  v.  Delaney,  73  N. 
Y.  571  (may  sue  to  set  aside  collusive  judgment) ;  Attorney-General  v. 
Guardian  M.  L.  Ins.  Co.,  77  N.  Y,  272  (is  exclusive  representative  of 
creditors,  and  may  enjoin  their  separate  actions  to  avoid  the  corpora- 
tion's fraudulent  transfers);  Stonebridge  v.  Perkins,  141  N.  Y.  1,  35 
N.  E.  980;  Mason  v.  Henry,  152  N.  Y.  529,  46  N.  E.  837;  Osgood  v. 
Laytin,  3  Keyes,  521  (may  recover  illegal  dividends,  and  enjoin  separ- 
ate suits  of  creditors  for  that  purpose);  Powers  v.  C.  H.  Hamilton' 
Paper  Co.,  60  Wis.  23,  18  N.  W.  20. 

58  Bostwick  V.  Menck,  40  N.  Y.  383;  Porter  v.  Williams,  9  N.  Y.  142^ 
59  Am.  Dec.  519. 

59  See  Hill  v.  Western  &  A.  E.  Co.,  86  Ga.  284,  12  S,  E.  635;  Farm- 
ers' Loan  &  T.  Co.  v.  Minn.  E.  &  M.  Works,  35  Minn.  543,  29  N.  W. 
349  (may  avoid  invalid  chattel  mortgage) ;  Walsh  v.  Byrnes,  39  Minn. 
527,  40  N.  W.  831;  Miller  v.  Mackenzie,  29  N.  J.  Eq.  291;  Bergen  v. 
Little,  41  N.  J.  Eq.  18,  2  Atl.  614;  Bold  v.  Dean,  48  N.  J.  Eq.  193,  21 
Atl.  618;  Walsh  v,  Eosso,  59  N.  J.  Eq.  123,  44  Atl.  708;  Porter  v.  Will- 
iams, 9  N.  Y.  142,  59  Am.  Dec.  519  (a  leading  case);  Stephens  v.  Per- 
rine,  143  N.  Y.  476,  39  N.  E.  11  (may  avoid  invalid  chattel  mortgage); 
Stephens  v.  Meriden  Britannia  Co.,  160  N.  Y.  178,  73  Am.  St.  Eep.  678, 
54  N.  E.  781  (his  right  of  action  is  equitable,  not  legal) ;  Eeynolds  v. 
Aetna  Life  Ins.  Co.,  160  N.  Y.  635,  55  N.  E.  305,  affirming  28  App.  Div. 
591,  51  N.  Y.  Supp.  446  (may  reach  amounts  due  on  insurance  policies,, 
concealed  by  debtor) ;  Hedges  v.  Polhemus,  9  Misc.  Eep.  680,  30  N.  Y.. 
Supp.  556  (may  avoid  chattel  mortgage);  Pender  v.  Mallett,  123  N.  C. 
57.  31  S.  E.  351. 


§  191  EQUITABLE    REMEDIES.  376 

the  creditor  to  have  set  aside  a  conveyance  which  as 
to  him  is  invalid,  but  which  is  effectual  as  a  cloud  to 
prevent  the  application  of  the  property  to  the  satis- 
faction of  his  debt.  There  is  no  need  that  the  receiver 
take  possession  of  the  property  for  this  purpose,  nor 
that  he  be  in  any  way  invested  with  the  title. "^"  If  the 
property  fraudulently  transferred  has  been  sold  by  the 
transferee,  the  receiver  may,  in  the  right  of  the  cred- 
itor, follow  the  fund  or  proceeds  of  the  sale  into  the 
hands  of  any  person  not  a  bona  fide  owner  or  holder 
thereof.®^  But  there  is  no  statute  and  no  rule  of  law 
which  entitles  him  to  sue  for  anything  that  does  not 
belong  or  has  not  belonged  to  the  debtor;  he  is  not  the 
representative  of  the  creditor  to  enforce  a  cause  of  ac- 
tion to  recover  damages  for  a  conspiracy  between  the 
judgment  debtor  and  others  to  prevent  the  collection 
of  the  dehtf^  or  to  enforce  a  resulting  trust  created  by 
statute  in  favor  of  creditors,  in  the  case  where  the 
debtor  pays  the  purchase  price  of  land  and  causes  the 
title  to  be  conveyed  to  another.®^  Further,  it  should 
be  noted  that  a  receiver  in  supplementary  proceedings, 
like  a  receiver  in  a  creditor's  bill  in  favor  of  particular 
creditors,  is  not  a  trustee  for  the  benefit  of  all  the 
creditors,  but  only  for  the  benefit  of  those  in  whose  be- 
half he  is  appointed.®^     His  primary  duty  is  to  apply 

60  Dunham  v.  Byrnes,  36  Minn.  106,  30  N.  W.  402;  Wright  v.  Nos- 
trand,  94  N.  Y,  32,  43. 

61  Mandeville  v.  Avery,  124  N.  Y.  376,  21  Am.  St.  Eep.  678,  26 
N.   E.   951. 

62  Ward  V.  Petrie,  57  N.  Y.  301,  68  Am.  St.  Rep.  790,  51  N.  E.  1002 
(see  this  case  for  an  instructive  summary  of  the  rights  and  remedies 
of  receivers  in  supplementary  proceedings  in  New  York). 

63  Since  in  such  case  the  trust  is  construed  to  result  not  through 
the  debtor  to  the  creditors,  but  directly  to  the  creditors:  Under- 
wood  V.  Sutcliffe,  77   N.  Y.  58. 

64  Young  V.  Clapp,  147  111.  176,  32  N.  E.  187,  35  N.  E.  372;  Rus- 
BeU  V.  Chicago  T.  &  S.  Bank,  139  III.  538,  17  L.  E.  A.  345,  29  N. 


377  SUITS  BY  THE  RECEIVER.  S  191 

the  funds  which  he  realizes  from  the  property  of  the 
debtor  in  satisfaction  of  the  judgments  which  he  was 
ai)pointed  to  enforce,  and  no  others.®^  He  is  "clothed 
with  power  to  set  aside  transfers  fraudulent  as  against 
the  demands  represented  by  him,  only  to  an  extent  suf- 
ficient to  satisfy  such  demands  and  costs."®^ 

E.  37;  Bostwick  v.  Menck,  40  N.  Y.  383;  Goddard  v.  Stiles,  90  N.  Y. 
199. 

65  Young  V.  Clapp,  147  111.  176,  32  N.  E.  187,  35  N.  E.  372;  Bost- 
wick V.  Menck,  40  N.  Y.  383;  Gifford  v.  Rising,  59  Hun,  42,  12  N. 
Y.   Supp.  428. 

66  Bostwick  T.  Menck,  40  N.  Y.  383. 


I  ld2  EQUITABLE   BEMEDIES.  87» 


CHAPTER  VII. 


RECEIVER'S   EELATION   TO   PENDmG   SUITS;  AKD 
WHEN  IS  HE  A  NECESSARY  PARTY. 

ANALYSIS. 

§  192.     Substitution  of  receiver  as  plaintiff  in  pending  actions;  effect 

of  his  appointment  on  pending  actions. 
§  193.     Substitution   of   receiver   as   defendant   in  pending  actions. 
§  194.     Intervention    by    receivers. 

§  195.     Effect  of  change  of  receivers  on  pending  actions. 
§  196.     When  is  receiver  a  necessary  party. 

§  192.  Substitution  of  Receiver  as  Plaintiff  in  Pending 
Actions;  Effect  of  His  Appointment  on  Pending  Actions. — Au- 
thority may  be  found  to  the  effect  that  the  appoint- 
ment of  a  receiver  with  the  right  to  sue  deprives  the 
principal  of  the  right  to  maintain  actions,  and  there- 
fore that  pending  proceedings  abate  by  the  appoint- 
ment of  a  receiver.^  But  the  tendency  of  modern  de- 
cisions is  in  favor  of  the  more  reasonable  rule  that  the 

1  Boston  etc.  Co.  v.  Montana  Ore  Puichasiug  (Jo.,  2-i  Mont.  142, 
60  Pac.  990,  where  the  court  savs  at  page  991:  "The  necessary 
effect  of  clothing  the  receiver  with  power  to  sue  was  to  deprive  the 
plaintiff  for  the  time  being  of  like  power.  We  have  been  cited  to 
no  case  or  text-book  announcing  the  contrary  rule,  and  have  been 
unable  to  find  any."  To  the  same  effect  are  the  cases  of  Idaho 
Gold  Reduction  Co.  v.  Croghan,  6  Idaho,  471,  56  Pac.  164;  Kokomo 
etc.  Ey.  Co.  v.  Pittsburg  etc.  Ky.  Co.,  25  Ind.  App,  335,  58  N.  E.  211; 
Davis  V.  Ladoga  Creamery  Co.,  128  Ind.  222,  27  N.  E.  494.  All  of 
these  eases  rest  upon  the  text  authority  of  Judge  Thompson  in 
§  6900  of  his  Commentaries  on  the  Law  of  Corporations.  The  only 
authority  which  the  learned  author  cites  (Milwaukee  Mutual  Fir© 
Ins.  Co.  V.  The  Sentinel  Co.,  81  Wis.  207,  51  N.  W.  440,  15  L.  R.  A. 
627),  was  a  case  holding  that  a  dissolved  corporation  could  not  con- 
tinue an  action  for  libel  pending  before  its  dissolution. 


379  KECEIVEE'S  EELATION    TO  PENDING   SUITS.       §   193 

appointment  of  the  receiver  has  no  effect  upon  pending 
actions,  unless  indeed  the  plaintiff  in  such  action  has 
been  restrained  from  prosecuting  the  action  by  the 
court  appointing  the  receiver,  or,  if  a  corporation,  has 
been  dissolved  by  a  final  decree.^  A  general  injunctive 
order,  however,  will  not,  under  this  latter  view,  be  con- 
strued as  applying  to  pending  actions.^  Even  the  facts 
that  a  corporation  is  insolvent  and  that  winding-up  pro- 
ceedings have  been  instituted  in  which  a  receiver  has 
been  appointed,  do  not  prevent  the  action  from  continu- 
ing in  the  name  of  the  corporation.  The  name  is  a 
mere  shell,  and  the  recovery,  of  course,  will  be  for  the 
benefit  of  those  whom  the  receiver  represents.^  In 
cases  of  pending  actions,  of  course,  a  receiver  who  is 
vested  with  the  choses  in  action  of  the  principal  may  be 
substituted  as  plaintiff,  and  such  is  doubtless  the  better 
practice.  But  the  failure  to  substitute  him  is,  at  most, 
only  a  formal  defect,  and  under  the  provisions  of  the 
codes,  notwithstanding  a  change  in  interest,  the  action 
may  be  continued  in  the  name  of  the  original  party.** 
Of  course  if  the  original  party  ceases  to  exist,  as  in  case 
of  the  final  dissolution  of  a  corporation,  actions  begun 
by  such  party  perish  with  it* 

§  193.     Substitution  of  Receiver  as  Defendant  in  Pending 
Actions. — The  effect  of  an  appointment  of  a  receiver  of 

2  Hunt  V.  Columbia  Ins.  Co.,  55  Me.  290,  92  Am.  Dec.  592;  Phoenix 
Warehousing  Company  v.  Badger,  67  N.  Y.  294,  299;  Sigua  Iron  Co. 
V.  Brown,  33  Misc.  Eep.  50,  68  N.  Y.  Supp.  141;  Warner  v.  Imbeau,  63 
Kan.  415,  65  Pac.  648. 

3  Sigua  Iron  Co.  v.  Brown,  33  Misc.  Eep.  50,  68  N.  Y.  Supp.  141. 

4  High  on  Eeceivers,  §  258;  Warner  v.  Imbeau,  63  Kan.  415  65 
Pac.    648. 

5  Warner  v.  Imbeau,  63  Kan.  415,  65  Pac.  648;  Vanderhorst  Brew- 
ing Co.  V.  Amrhine,  98  Md.  406,  56  Atl.  833. 

6  Milwaukee  Mutual  Fire  Ins.  Co.  v.  The  Sentinel  Co.,  81  Wis. 
207,  51  N.  W.  440,  15  L.  B.  A.  627;  National  Bank  v.  Colby,  21 
Wall.  609,  22  L.  ed.  687. 


5   193  EQUITABLE    REMEDIES,  380 

a  defendant's  property  is  very  different  from  the  effect 
of  the  appointment  of  a  receiver  of  the  plaintiff's  prop- 
erty. In  the  case  of  the  plaintiff,  it  is  always  proper 
for  the  receiver  to  be  substituted  where  vested  with  the 
right  to  sue,  though  sometimes,  as  has  been  seen,  not 
necessary.  But  in  the  case  of  the  receiver  appointed 
for  defendants,  it  is  sometimes  not  proper  to  substitute 
the  receiver.  As  the  ordinary  chancery  receiver  is  not 
vested  with  title  to  the  property,  there  is  no  change  of 
ownership  demanding  a  substitution  in  such  cases,  and 
as  the  appointment  of  such  receiver  is  by  no  means 
equivalent  to  a  dissolution,  in  cases  of  corporate  re- 
ceivers, there  is  no  abatement  of  pending  actions. '^ 
Such  actions  may  therefore  continue  against  the  original 
defendant  notwithstanding  the  receiver's  appointment. 
But  if  the  effect  of  the  proceeding  disturb  the  receiver's 
possession  of  property,  it  is  clear  that  he  must  be  made 
a  party  under  leave  of  court.^  Or  if  the  receiver  be  ap- 
pointed upon  the  statutory  dissolution  of  a  corporation, 
it  is  plain  that  pending  actions  abate,  and  can  be  con- 

7  Decker  v.  Gardner,  124  N.  Y.  334,  26  N.  E.  814,  11  L.  ed.  480. 
In  this  case,  an  action  of  trespass  was  pending  against  a  corporation 
before  the  appointment  of  the  receiver  pendente  lite;  upon  leave  of 
court  the  receiver  was  substituted,  and  afterwards  moved  for  a  dis- 
missal of  the  action  on  the  ground  that  he  was  not  the  proper 
party,  but  that  the  corporation  continued  to  be  the  proper  party- 
defendant.  The  court  dismissed  the  action,  and  in  a  somewhat 
elaborate  opinion  discusses  the  distinction  between  the  receiver 
pendente  lite  and  the  receiver  on  dissolution  of  the  corporation.  In 
Hunt  V.  Columbia  Ins.  Co.,  55  Me.  290,  296,  92  Am.  Dec.  592,  Bar- 
rows, J.,  says:  "Like  the  apocalyptic  church  in  Sardis,  when  its 
existence  was  recognized  and  it  was  addressed  in  the  language  of 
rei)roof  by  the  apostle,  though  in  some  sort  it  may  be  said  to  be 
dead,  'it  has  a  name  to  live';  and  for  the  furtherance  of  justice  it 
is  best  to  'strengthen  the  things  that  are  ready  to  die'  ":  GriflSth 
V.  Burlingame,  18  Wash.  429,  51  Pac.  1059;  Kelley  v.  U.  P.  E.  Co., 
58  Kan.  161,  48  Pac.  843,  with  which  compare  Scannell  v.  Felton,  57 
Kan.  468,  46  Pac.  948. 

8  Calhoun  v.  Lanoux,  127  U.  S.  634,  8  Sup.  Ct.  1345,  32  I^  ed.  297. 


381  EECEIVER'S  RELATION  TO  PENDING  SUITS.         fi   193 

tinued,  if  at  all,  only  against  the  reoeiver,  who  can  be 
sued,  in  general,  only  by  leave  of  court.*  Nothing 
short  of  an  actual  dissolution,  however,  abates  actions 
already  pending;  the  mere  commencement  of  winding- 
up  proceedings  and  the  appointment  of  a  receiver  'pen- 
dente lite  does  not  have  that  result.^*^  If  a  corporation 
be  dissolved,  actions  against  it  fall,  unless  expressly 
reserved  by  the  decree  of  dissolution,  and  the  plaintiffs 
in  such  actions  must  seek  their  relief  in  the  adminis- 
tration proceedings  in  the  court  granting  the  order  of 
dissolution.^^  The  receiver,  by  appearing  and  defend- 
ing without  leave  of  court,  or  where  he  is  not  a  proper 

»  Nelson  v.  Hubbard,  96  Ala.  245,  11  South.  428;  Rogers  v.  Haines^ 
m  Ala.  586,  11  South.  651;  Combes  v.  Keyes,  89  Wis,  297,  46  Am.  St. 
Rep.  839,  62  N.  W.  89,  27  L,  R.  A.  369;  Toledo  etc.  Co,  v,  Beggs,  85 
HI,  80,  28  Am,  Rep,  613;  People  v  Knickerbocker  Life  Ins,  Co.,  106 
N.  Y.  619,  13  N,  E,  447;  Morgan  v.  New  York  Nat.  B,  &  L.  Assn,, 
73  Conn.  151,  46  Atl.  877;  Wilcox  v.  Continental  L,  Ins.  Co.,  56  Conn. 
468,  16  Atl.  244;  Pendleton  v.  Russell,  144  U,  S.  640,  12  Sup,  Ct. 
743,  36  L.  ed,  574;  National  Bank  v.  Colby,  21  Wall,  609,  22  L,  ed. 
C87;  Gray  v.  Taylor  (N.  J,),  44  Atl,  668.  But  where  in  the  prior 
action  the  court  has  taken  possession  of  the  res  by  its  receiver,  a 
subsequent  dissolution  of  the  corporation  does  not  hinder  the  first 
court  from  rendering  a  valid  decree:  Leadville  Coal  Co.  v.  MeCreery^ 
141  U.  S.  475,  12  Sup,  Ct,  28,  35  L.  ed,  824. 

10  Page  v.  Supreme  Lodge  K,  &  L,  of  P.,  161  Mass.  584;  Warner 
V.  Imbeau,  63  Kan.  415,  65  Pac.  648.  But  the  receiver  pendente  lite 
in  winding-up  proceedings  may  have  the  prosecution  of  such  action» 
enjoined,  for  the  corporation  having  no  assets  and  no  means  of  de- 
fense, it  is  proper  that  the  claims  should  be  adjudicated  by  the 
court  administering  its  estate:  Morton  v.  Stone  Harbor  Imp.  Co.  (N. 
J.),  44  Atl,  875.  A  recent  writer  (Alderson  on  Receivers,  p.  510) 
suggests  that  this  case  is  in  direct  conflict  with  another  decision  of 
the  same  court  in  the  same  volume,  Gray  v,  Taylor  (N,  J,),  44  Atl. 
668,  The  latter  case  holds  that  the  dissolution  of  a  foreign  corpora- 
tion by  a  decree  in  the  court  of  its  domicile  abates  pending  actions 
everywhere,  but  holds  that  the  particular  action  was  exempted  from 
the  decree  of  dissolution.  In  the  Morton  case  there  was  not  yet 
a  decree  of  dissolution,  though  proceedings  looking  to  that  end 
were  instituted.  It  is  not  perceived  that  any  inconsistency  exist* 
between  the  two  decisions. 

11  Gray  v.  Taylor  (N.  J,),  44  Atl.  668. 


§5    194,   ]'.)5  EQUITABLE  REMEDIES.  382 

party,  cannot  bind  the  fund,  and  the  judgment  against 
him  will  be  without  effect^^ 

§  194.  Intervention  by  Receivers. — The  receiver*s  right 
to  intervene  in  pending  actions  stands  on  a  different 
footing  both  from  his  right  to  be  substituted  as  plain- 
tiff and  from  his  right  to  be  substituted  as  defendant 
in  pending  actions.  While  he  may  be  substituted  as 
plaintiff  in  every  case,  and  while  he  may  be  made  a 
defendant  only  in  cases  where  the  action  disturbs  his 
possession  or  where  he  has  title  in  trust  for  creditors 
and  others,  the  right  to  intervene  stands  on  a  middle 
ground.  Such  intervention  is  allowed  where  the  re- 
ceiver has  an  interest  in  the  controversy  which  it  is 
deemed  expedient  that  he  should  protect,  and  is  largely 
a  matter  for  the  exercise  of  the  court's  discretion.^^ 

§  195.  Effect  of  Change  of  Receivers  on  Pending  Actions. 
"So  long  as  the  property  of  the  corporation  remains  in 
the  custody  of  the  court  and  is  administered  through 
the  agency  of  a  receiver,  such  receivership  is  continuous 
and  uninterrupted  until  the  court  relinquishes  its  hold 
upon  the  property,  although  its  personnel  may  be  sub- 
ject to  repeated  changes.  Actions  against  the  receiver 
are,  in  law,  actions  against  the  receivership,  and  the 
funds  in  the  hands  of  the  receiver,  and  his  contracts, 
misfeasances,  negligences  and  liabilities  are  official  and 
not  i^ersonal  and  judgments  against  him  are  payable 

12  Pendleton  v.  Eussell,  144  U.  S,  640,  12  Sup.  Ct.  743,  36  L.  ed. 
574.  But  compare  Smith  v.  United  States  Express  Co.,  135  111.  279, 
25  N.  E.  527;   Gray  v.  Taylor   (N.  J.),  44  Atl.  668. 

13  Andrews  v.  Steel  City  Bank,  77  Mo.  342;  State  v.  Bank  of 
Ottumwa,  76  Mo.  715;  Hedrick  v.  McElroy  (Iowa),  76  N.  W.  716; 
Bowen  v.  Needles  Nat.  Bank,  76  Fed.  176.  A  receiver  who  is  merely 
a  stake-holder  cannot  intervene:  National  Park  Bank  v.  Goddard,  65 
Hun,  626,  20  N.  Y.  Supp.  526,  984. 


383  WHEN   RECEIVER   A   NECESSARY   PARTY.  i   196 

only  from  the  funds  in  his  hands."* ^  Accordingly, 
where  successive  receivers  are  appointed,  proceedings 
pending  against  one  should  be  continued  in  the  name 
of  the  successor.  The  liability  continues  only  so  long 
as  the  court  retains  the  fund,  and  therefore  the  dis- 
charge of  the  receiver,  and  the  turning  over  of  the  fund 
or  res  to  the  purchaser,  terminates  the  receiver's  liabil- 
ity.*^ In  case  of  the  termination  of  the  proceedings, 
it  is  therefore  usual  for  the  court  to  allow  a  certain 
time  within  which  intervening  petitions  against  the  re- 
ceiver may  be  heard  before  the  fund  or  res  is  finally 
surrendered.*®  An  interesting  extension  of  equitable 
principles  has  made  the  railroad  company  to  which  the 
property  has  been  surrendered  on  the  termination  of  the 
receivership  liable  for  the  receiver's  wrongs  to  the  ex- 
tent of  the  betterments.*^ 

§  196.  When  is  Receiver  a  Necessary  Party. — Where  the 
right  of  action  is  vested  in  the  receiver  by  the  order  of 
appointment,  he  is,  of  course,  the  only  necessary  party 
plaintiff.**     And  where  he  would  be  affected  directly 

14  McNulta  V.  Lochridge,  141  U.  S.  327,  332,  12  Sup.  Ct.  11,  35 
L.  ed.  796;  Guaranty  Co.  of  N.  D.  v.  Hanway,  104  Fed.  369,  373,  44 
C.  C.  A.  312;  Robinson  v.  Mills,  25  Mont.  391,  65  Pac.  114.  If  the 
second  receiver  is  appointed  to  control  only  a  portion  of  the  fund 
controlled  by  the  first,  he  is  not  liable  for  his  predecessor's  wrongs: 
Jones  V.  Schlapback,  81  Fed.  274. 

15  Archambeau  v.  Piatt,  173  Mass.  249,  53  N.  E.  816;  Kansas  & 
G.  S.  R.  R.  Co.  V.  Dorough,  72  Tex.  Ill,  10  S.  W.  711. 

10  Such  was  the  decree  in  Texas  &  Pacific  Ry.  v.  Johnson,  151  U. 
S.  81,  14  Sup.  Ct.  250,  38  L.  ed.  81;  and  compare  Texas  &  Pacific 
Ry.  V.  Bloom,  164  U.  S.  639,  17  Sup.  Ct.  216,  41  L.  ed.  580;  Fidelity 
Ins.  Co.  V.  Norfolk  etc.  R.  Co.,  88  Fed.  815. 

17  Texas  &  Pacific  R.  Co.  v.  Bloom,  164  U.  S.  636,  17  Sup.  Ct. 
216,  41  L.  ed.  580;  Bartlett  v.  Cicero  etc.  Co.,  177  HI.  68,  69  Am.  St. 
Rep.  206,  52   N.  E.  339. 

18  Porter  v.  Sabin,  149  U.  S.  473,  13  Sup.  Ct.  1008,  37  L.  ed.  815, 
where  a  receiver  of  a  manufacturing  company  has  been  appointed  by 
a   state  court,  no  action  can  be  maintained   against  Its  officers  for 


S  196  EQUITABLE   EEMEDIEa  884 

by  the  decree  he  must  be  made  a  party  defendant.  Thus, 
where  a  railroad  company  had  its  property  placed  in 
the  hands  of  a  receiver  pendente  lite  appointed  in  fore- 
closure proceedings,  it  was  held  that  he  was  the  only 
necessary  party  defendant  in  a  bill  seeking  specific  per- 
formance of  a  contract  made  by  the  company.^®  So  a 
partnership  receiver  is  a  necessary  party  defendant  in 
an  action  to  foreclose  a  mortgage  given  by  the  partr 
nership.2^  But  where  the  receiver  is  appointed  to  hold 
property  in  proceedings  which  do  not  look  toward  the 
ultimate  disposition  of  the  property,  he  is  not  a  neces- 
sary party  in  actions  subsequently  commenced.^^  And 
of  course  where  a  contract  is  made  by  a  receiver,  say  of 
a  partnership,  he  alone  need  be  sued,  and  the  surviving 
partner  need  not  be  joined.^^  A  receiver  appointed  bV 
the  comptroller  of  the  currency  to  take  charge  of  assets 

fraudulent  misappropriation  of  its  funds  by  stockholders.  The  right 
of  action  is  in  the  receiver,  and  even  though  the  state  court  has  re- 
fused to  allow  him  to  sue  or  to  be  made  a  party  to  the  bill,  his  ab- 
sence is  not  excused;  cf.  Brinkerhoff  v.  Bostwick,  88  N,  Y.  52;  Acker- 
man  V.  Halsey,  37  N.  J.  Eq,  356;  Davis  v.  Gray,  16  Vfall.  203,  21 
L.    ed.    447. 

19  Express  Co.  v.  Eailroad  Co.,  99  U.  S.  191,  25  L.  ed.  319;  South- 
ern Mutual  B.  &  L.  Assn.  v.  Andrews,  122  Ala.  601,  26  South.  113. 

20  Kirkpatrick  &  Corning  v.  Corning,  38  N.  J.  Eq.  234;  Kirkpatrick 
T.  McElroy,  41  N.  J.  Eq.  539,  7  Atl.  647;  Tyson  v.  Applegate,  4a 
N,  J.  Eq.  305;  Comer  v.  Bray,  83  Ala.  217,  3  South.  554. 

21  Thus,  where  a  receiver  was  appointed  to  take  charge  of  mort- 
gaged property  and  collect  the  rent  thereof,  he  is  not  a  necessary 
pnrty  to  a  bill  subsequently  filed  to  foreclose  a  mortgage;  Heffron  v. 
Oagp,  149  111.  182,  36  N.  E.  569;  Keeney  v.  Insurance  Co.,  71  N.  Y. 
396,  27  Am.  Rep.  60;  Calhoun  v.  Lanoux,  127  U.  S.  634,  8  Sup.  Ct. 
1345,  32  L.  ed.  297.  A  receiver  appointed  in  an  action  for  an  ac- 
eounting  need  not  be  made  a  party  in  actions  subsequently  brought 
by  the  creditors:  Heath  v.  Missouri  etc.  Ey.  Co.,  83  Mo.  617;  Ohio  & 
M.  Ey.  Co.  v.  Eussell,  115  111.  52,  3  N.  E.  561;  Paddack  v.  Staley,  IS 
Colo.   App.   363,  58   Pac.   363. 

22  Painter  v.  Painter,  138  Cal.  231,  94  Am.  St.  Eep.  47,  71  Pac. 
»0. 


385  WHEN  EECEIVER  A  NECESSARY  PARTY.  S   ^^ 

of  a  national  bank  is  not  a  judicial  oflBeer,  and  is  not 
a  proper  party,  for  example,  in  an  action  brought  for 
rent  due  from  the  bank.^^ 

23  Chemical  Nat.  Bank  of  Chicago  v.  Hartford  Deposit,  156  HI. 
522,  41  N.  E.  225j  Bank  of  Bethel  v.  Pahquioque  Bank,  14  Wall.  383, 
20  L.  ed.  840. 

Equitable  Remedies,  Vol.  I — 25 


I  ii)7  EQUITABLE    EEMEDIES.  386 


CHAPTER  VIII. 


RECEIVERS— MANAGEMENT   AND   DISPOSITION   OF 
PROPERTY. 

ANALYSIS. 

§   197.  In  general. 

§   198.  Discretion  allowed  to  managing  receiver. 

§  199.  Duty  to  obtain  instructions. 

§  200.  Duty  to  collect  assets. 

S§  201-203.  Eight  to  continue  business. 

§  202.  Executory  contracts. 

§  203.  Existing  leases. 

§  204.  Eight  to  make  contracts. 

§  205.  Eights  in  relation  to  employees. 

§  206.  Eight  to  employ  attorneys. 

§  207.  Eight  to  make  repairs,  improvements,  etc. 

§  208.  Eight  to  lease  property. 

S§  209-213.  Eight  to  sell  property. 

§  209.  Sales — In  general. 

§  210.  Sale  is  subject  to  confirmation. 

§  211.  Personal  property. 

§  212.  Sale  is  subject  to  existing  liens. 

§  213.  Effect  of  reversal  of  order  appointing  receivers, 

§§  214-216.  Eeceivers'  certificates. 

§  214.  In  general. 

§  215.  Nature  of  certificates. 

§  216.  Purposes  for  which  certificates  may  be  issued. 

§  217.  Liability  for  fraud,  negligence,  etc. 

§  197.  In  General. — When  a  receiver  is  appointed,  and 
property  is  committed  to  him,  as  such,  he  becomes  the 
officer  and  custodian  of  the  court.  It  is  his  duty  to 
keep  and  manage  the  property  according  to  the  direc- 
tions and  orders  of  the  court.  The  court's  orders  are 
the  measure  of  his  authority,  and  he  must  neither  ex- 
ceed nor  ignore  them.     In  managing,  he  must  seek  in- 


387  EECEIVEE'S  MANAGEMENT   OF  PEOPERTY.         §   193 

struction  on  all  matters  of  importance.  If  be  exceeds 
his  authority,  he  cannot  charge  the  estate  for  the  ex- 
penses incurred  thereby;  and  if  his  wrong  has  resulted 
in  loss,  he  must  make  good  the  deficiency.* 

§  198.  Discretion  Allowed  to  Managing  Receiver. — While 
the  receiver  must,  in  general,  confine  his  action  within 
the  scope  of  the  orders  of  the  court,  in  many  matters  of 
administrative  detail  be  is  allowed  a  discretion.^  Mere 
mistakes  of  judgment  in  regard  to  such  matters  will  not 
be  charged  against  him.  In  many  instances  it  would  be 
impracticable  to  apply  to  the  court  for  instructions; 
and  frequently  the  questions  arising  are  so  numerous 
that  the  court  could  not  conveniently  consider  them.' 
Such  action  by  the  receiver  is  at  his  own  risk,  and  is 

J  Henry  v.  Henry,  103  Ala.  582,  15  South.  916.  And  see  cases 
cited   in   subsequent   paragraphs. 

2  Continental  Trust  Co.  v.  Toledo  St.  L.  &  K.  C.  E.  Co.,  59  Fed. 
514;  Cowdrey  v.  Eailroad  Co.,  1  Woods,  336,  Fed.  Cas.  No.  3293; 
Harrigan  v.  Gilchrist,  121  Wis.  127,  99  N.  W.  909.  "Modern  prac- 
tice permits  them  to  exercise  their  sound  discretion  in  many  mat- 
ters relating  to  the  care  and  management  of  property  in  their  cus- 
tody, subject  to  the  subsequent  approval  of  the  court,  which  will 
be  given  when  the  officer  has  acted  in  good  faith,  and  what  he  has 
done  appears  to  have  been  beneficial  to  the  parties  interested": 
State  Central  Sav.  Bank  v.  Fanning  Bali-Bearing  Chain  Co.,  118 
Iowa,  698,   92   N.  W.   712. 

3  "Doubtless  the  chancellor  has  power  to  retain  in  his  hands  the 
administration  of  such  a  trust  and  to  personally  direct  and  order 
each  contract  into  which  the  receiver  should  enter.  But  it  would 
obviously  be  impracticable  to  adopt  such  a  course  in  running  a  rail- 
road. To  select  and  employ  the  necessary  subordinates;  to  fix  the 
term  of  service  and  the  amount  of  wages;  to  contract  for  and  pur- 
chase materials  and  supplies;  and  to  anticipate  in  these  respects 
the  future  needs  of  one  of  the  gigantic  corporations  by  express  or- 
ders in  each   case, — would  require  the  whole  time   of  the   chancellor 

and    could     never     have     been    intended     by     this    legislation 

Whether  a  power  to  exercise  such  discretion  would  not  be  assumed 
to  exist  in  every  case,  without  a  special  order,  need  not  be  consid- 
ered, for  it  is  clear  that  the  chancellor  may  accord  such  discretion- 


S  199  EQUITABLE   REMEDIES.  388 

subject  to  the  subsequent  approval  of  the  court.'*  In 
important  matters  he  should  first  obtain  an  order,  and 
then  keep  strictly  within  its  limits.  These  rules  apply 
with  special  force  to  railway  receiverships,  where  the 
details  are  many.  Mr.  Justice  Bradley,  of  the  supreme 
court  of  the  United  States,  sitting  as  circuit  judge, 
stated  the  rule  as  follows :  "All  outlays  made  by  the  re- 
ceiver in  good  faith,  in  the  ordinary  course,  with  a  view 
to  advance  and  promote  the  business  of  the  road,  and  to 
render  it  profitable  and  successful,  are  fairly  within  the 
line  of  discretion  which  is  necessarily  allowed  to  a  re- 
ceiver intrusted  with  the  management  and  operation 
of  a  railroad  in  his  hands.  His  duties,  and  the  discre- 
tion with  which  he  is  invested,  are  very  different  from 
those  of  a  passive  receiver,  appointed  merely  to  collect 
and  hold  moneys  due  on  prior  transactions,  or  rents 
accruing  from  houses  and  lands.  And  to  such  outlays 
in  ordinary  course  may  properly  be  referred,  not  only 
the' keeping  of  the  road,  buildings  and  rolling  stock  in 
repair,  but  also  the  providing  of  such  additional  accom- 
modations, stock  and  instrumentalities  as  the  necessities 
of  the  business  may  require."^ 

§  199.  Duty  to  Obtain  Instructions. — A  receiver  should, 
in  all  matters  of  importance  not  covered  by  the  order  of 
the  appointing  court,  apply  to  the  court  for  instructions. 
If  he  does  not,  he  will  be  held  liable  in  case  the  court 
shall  subsequently  disapprove  of  his  action.®    Instruc- 

ary  power  to  a  receiver  by  a  general  order,  such  as  was  made  in  this 
cause":  Vanderbilt  v.  Little,  43  N.  J.  Eq.  669,  12  Atl.  188,  per 
Magie,    J. 

4  State  Central  Sav.  Bank  v.  Fanning  Bali-Bearing  Chain  Co.,  113 
Iowa,  698,  92   N,  W.   712. 

6  Cowdrey  v.  Eailroad  Co.,  1  Woods,  336,  Fed.  Cas.  No.   3293. 

6  Braman  v.  Farmers'  Loan  etc.  Co.,  114  Fed.  18,  51  C.  C.  A. 
644;  In  re  Angell,  131  Mich.  345,  91  N.  W.  611. 


389  RECEIVER'S  MANAGEMENT  OF  PROPERTY.         S  199 

tions  must  be  obtained  in  the  receivership  action,  and 
frequently  they  are  given  on  ex  parte  application.'^  In 
some  instances  they  may  be  given  by  the  judge  in  cham- 
bers.* The  better  practice  is  to  require  notice  when 
any  adverse  rights  are  involved,  so  that  the  parties  may 
be  heard  before  an  order  is  given.  It  has  been  intimated 
by  a  federal  court  that  while  an  ex  parte  order  may  be 
binding  upon  the  receiver,  it  is  not  conclusive,  and  may 
be  set  aside  in  the  event  that  the  judge  changes  his 
mind."    Matters  of  infinite  variety  may  be  determined 

7  Free  Gold  Min.  Co.  v.  Spiers,  136  Cal.  484,  69  Pac.  143  (ew  parte 
order  directing  receiver  of  mining  property  to  purchase  a  cyanide 
plant  sustained);  Weeks  v.  Weeks,  106  N.  Y.  626,  13  N.  E,  96  (court 
may  direct  receiver  to  lease  the  property,  upon  ex  parte  application; 
receiver  may  make  such  application  although  original  order  is  silent 
on  question  of  leasing).  An  order  made  in  another  action  is  not 
binding  upon  the  receiver:  Merritt  v.  Sparling,  88  Hun,  491,  34  N. 
Y.    Supp.    882. 

8  State  V.  Port  Royal  etc.  Ry.  Co.,  45  S.  C.  413,  23  S.  E.  363  (by 
virtue  of  statute  authorizing  judges,  at  chambers,  and  upon  reason- 
able notice,  "to  make,  direct,  and  award  all  such  process,  commis- 
sions and  interlocutory  orders,  rules,  and  other  proceedings  whenever 
the  same  are  not  grantable  of  course  according  to  the  rules  and 
practice  of  the  court"). 

»  Missouri  Pac.  Ry.  Co.  v.  Texas  etc.  Ry.  Co..  31  Fed.  862  ("If 
there  are  parties  in  interest,  and  they  have  their  day  in  court,  the 
advice  may  be  decisive.  But,  if  the  matter  is  ex  parte,  the  value  of 
the  advice  depends  largely  upon  the  information  and  ability  of  the 
judge,  and  is  probably  binding  only  on  the  receivers,  for  the  judge 
may  change  his  mind  on  hearing  full  argument").  In  Weeks  v. 
Weeks,  106  N.  Y.  626,  13  N.  E.  96,  Finck,  J.,  said:  "The  general 
power  of  a  court  to  modify  or  vacate  its  judgments  or  orders  for 
fraud  or  irregularity,  or  where  it  has  acted  inadvertently,  or  im- 
prudently, is  well  settled.  It  is  true  the  law  protects  the  title  of  a 
third  person,  being  a  bona  fide  purchaser  on  a  sale  on  an  execution 
urder  a  judgment  voidable  but  not  void,  although  the  judgment  is 
subsequently  reversed  for  error.  This  principle  does  not,  we  think, 
preclude  the  court  from  modifying  or  vacating  a  summary  order 
made  improvidently  in  the  course  of  an  action,  although  the  rights 

of  third  persons  may  be  affected  thereby We  think  the  court 

was  authorized  to  award  indemnity  out  of  the  fund  arising  under 
the  judgment  in  partition,  and  that  nothing  else  would  satisfy  the 
claims  of  justice." 


§§  200-202  EQUITABLE  EEMEDIES.  3y0 

by  the  court  on  such  application.  It  has  been  held, 
however,  that  no  instructions  as  to  the  disposition  of 
funds  will  be  given  until  the  funds  are  in  court.^^ 

§  200.  Duty  to  Collect  Assets. — It  is  generally  one  of 
the  first  duties  of  a  receiver  in  the  performance  of  his 
trust  to  collect  the  assets.  Here,  as  in  all  other  matters, 
he  must  act  under  the  direction  of  the  court.  The  means 
by  which  he  may  possess  himself  of  the  property — by 
summary  proceedings  against  parties  and  by  action 
against  others — are  discussed  at  length  elsewhere.^^ 

§  201.  Right  to  Continue  Business. — Unless  directed  by 
an  order  of  the  court,  a  receiver  has  no  authority  to 
continue  a  business.  If  he  does,  "it  is  sufficient  to  show 
the  inventory  and  appraisement,  and  the  burden  is  on 
him  to  explain  and  account  for  the  property."^^  In 
proper  cases,  where  it  is  for  the  best  interests  of  all  con- 
cerned, the  court  will  direct  the  receiver  to  continue 
with  the  business.^^  Under  such  circumstances,  much 
must  of  necessity  be  left  to  the  discretion  of  the  officer. 
Such  an  order  impliedly  authorizes  him  to  contract 
debts  and  incur  liabilities  on  account  of  the  business. 

§  202.  Executory  Contracts. — Where  a  receiver  is  au- 
thorized by  the  court  to  continue  the  business,  he  is  im- 

10  Strauss  v.  Carolina  Interstate  B.  &  L.  Assn.,  117  N.  C.  308,  53 
Am.  St.  Rep.  585,  23  S.  E.  450,  30  L.  R.  A.  693,  118  N.  C.  556,  24  S. 
E.    116. 

11  See  §   161,  and  chapter  VI,  ante;  chapter  XI,  post. 

12  Pangburn  v.  American  Vault,  Safe  &  Lock  Co.,  205  Pa.  St.  93, 
54   Atl.   508. 

13  For  instances  where  such  orders  have  been  given,  see  Thornton 
V.  Highland  Ave,  &  B.  R.  Co.,  94  Ala.  353,  10  South.  442;  Florence 
Gas,  Electric  L.  &  P.  Co.  v.  Hanby,  101  Ala.  15,  13  South.  343; 
Eochat  V.  Gee,  137  Cal.  497,  70  Pac.  478;  Cake  v.  Woodbury,  3  App. 
D.  C.  60;  Dayton  v.  Wilkes,  17  How.  Pr.  510;  Smith  v.  New  York 
Con.  Stage  Co.,  18  Abb.  Pr.  419.  And  see  the  very  numerous  cases 
of  railway  receiverships  cited  in  this  chapter. 


S91  RECEIVER'S  MANAGEMENT  OF  PROPERTY.         §  203 

pliedly  directed  to  complete  such  unfinished  contracts 
as  are  for  the  best  interests  of  the  trust.  He  is  not 
bound  to  complete  contracts  of  which  he  disapproves;^* 
but  he  is  expected  to  investigate  them  and  either  act  ac- 
cording to  his  own  judgment  or  obtain  the  direction  of 
the  court.^^  "The  privilege  of  the  receiver  in  acting  for 
the  best  interest  of  the  estate  and  its  creditors  not  only 
extends  to  the  right  to  elect  what  contracts  he  will 
adopt,  but  also  to  make  the  election  without  at  least 
subjecting  the  fund  required  for  the  satisfaction  of  ex- 
isting claims  of  creditors  to  a  charge  for  damages."^^ 

§  203.  Existing  Leases. — A  receiver  is  not  bound  by  an 
existing  lease,  unless  he  adopts  it.^^  The  circumstances 
authorizing  such  adoption  are  similar  to  those  which 
enable  him  to  take  advantage  of  ordinary  existing  con- 
tracts. He  is  not  bound  to  elect  immediately  upon  his 
appointment.  Instead,  he  may  take  and  retain  posses- 
sion for  such  reasonable  time  as  will  enable  him  to  in- 
telligently elect  whether  the  interest  of  his  trust  will  be 
best  subserved  by  adopting  the  lease  and  making  it  his 
own,  or  by  returning  the  property  to  the  lessor.^  ^    Ac- 

14  Dushane  v.  Beall,  161  U.  S.  516,  16  Sup.  Ct.  367,  40  L.  ed.  791 
(dictum);  Central  Trust  Co.  v.  East  Tennessee  Land  Co.,  79  Fed. 
19;'Well3  V.  Hartford  Manilla  Co.,  76  Conn.  27,  55  Atl.  599;  Brown 
V.  Warner,  78  Tex.  543,  22  Am.  St.  Rep.  67,  14  S.  W.  1032,  11  L.  R. 
A.  394.  See,  however,  Elmira  Iron  &  Steel  R.  M.  Co.  v.  Erie  Ry.  Co., 
26  N.  J.  Eq.  284,  where  the  court,  by  its  order,  directed  that  "any 
person  or  corporation  having  a  contract  with  the  Erie  company  shall 
be  at  liberty  to  apply  by  petition  in  this  suit,  or  by  independent 
bill,  for,  and  obtain  relief  and  injunction,  if  entitled  thereto,  to 
require  the  company  or  the  receiver  to  refrain  from  violating  any 
Buch   contract." 

15  Harrigan  v.  Gilchrist,  121  Wis.  127,  99  N.  W.  909. 

16  Wells  v.  Hartford  Manilla  Co.,  76  Conn.  27,  55'    Atl.  599. 

17  Dayton  Hydraulic  Co.  v.  Felsenthall,  116  Fed.  961,  54  C.  C.  A, 
537;  Klein  v.  W.  A.  Gavenesch  Co.,  64  N.  J.  Eq.  50,  53  Atl.  196. 

18  Carswell  v.  Trust  Co.,  74  Fed.  88,  20  C.  C.  A.  282;  Dayton  Hy- 
draulic Co.  v.  Felsenthall,  116  Fed.  961,  54  C.  C.  A.  537.     See,  also, 


{  204  EQUITABLE   REMEDIES.  392 

cordingly,  a  railroad  receiver  may  operate  a  leased  line 
for  a  reasonable  time  in  order  to  ascertain  the  situa- 
tion of  affairs,  and  such  action  will  not  amount  to  an 
adoption  of  the  lease.^'  What  is  a  reasonable  time  for 
him  to  so  hold  must  depend  largely  upon  the  circum- 
stances of  each  case.^*^  If  he  holds  the  premises  for  a 
longer  time,  continues  the  business,  and  does  nothing  to 
show  an  election  not  to  adopt,  he  vdW  be  held  to  the 
terms  of  the  lease.^^  Payment  of  rent  is  a  circumstance 
to  be  considered  as  indicating  an  adoption,  although  it 
is  not  conclusive.22  If  he  elects  to  adopt  a  lease,  he 
"becomes  vested  with  the  title  to  the  leasehold  interest, 
and  a  privity  of  estate  is  thereby  created  between  the 
lessor  and  the  receiver,  by  which  the  latter  becomes 
liable  upon  the  covenant  to  pay  rent/'^a 

§  204.  Right  to  Make  Contracts. — Receivers  can  make 
only  such  contracts  as  the  court  may  previously  author- 

Johnson  v.  Lehigh  Val.  Traction  Co.,  130  Fed.  932;  Tradesman  Pub. 
Co.  V.  Knoxville  C.  W.  Co.,  95  Tenn.  634,  49  Am.  St.  Rep.  943,  32 
S.  W.  1097,  71  L.  R.  A.  593.  The  same  principle  applies  to  a  lease 
of  rolling  stock:  Sunflower  Oil  Co.  v.  Wilson,  142  U.  S.  313,  12  Sup. 
Ct.  235,  35  L.  ed.  1025;  Piatt  v.  Railroad  Co.,  84  Fed.  535,  28  C.  C. 
A.  488. 

19  Quincy,  M.  &  P.  E.  Co.  v,  Humphreys,  145  U.  S.  82,  12  Sup.  Ct. 
787,  36  L,   ed.  632. 

20  Ames  v.  Union  Pac.  R.  Co.,  60  Fed.  967  (sixty-five  days  reason- 
able, in  railroad  lease);  Carswell  v.  Farmers'  Loan  etc.  Co.,  74  Fed. 
88,  20  C.  C.  A.  282,  43  U.  S.  App.  300  (ten  months  reasonable); 
Smith  V.  Goodman,  149  111.  75,  36  N.  E.  621   (four  mouths). 

21  Link  Belt  Machinery  Co.  v.  Hughes,  174  111.  155,  51  N.  E.  179. 
Where  the  receiver  completes  the  term  without  any  act  of  disaffirm- 
ance, he  cannot  then  repudiate  and  pay  only  on  the  basis  of  a  quan- 
tum iiwruit:  Spencer  v.  World's  Columbian  Exposition,  163  HI.  117, 
45  N.  E.  250  (affirming  58  111.  App.  637). 

22  Wells  V.  Higgins,  132  N.  Y,  459,  30  N.  E.  861;  Commonwealth 
V.  Franklin  Ins.  Co.,  115  Mass.  278  (not  an  adoption  when  paid  aa 
a    compromise). 

23  See  United  States  Trust  Co.  v.  Wabash  W.  Ry.  Co.,  150  U.  S. 
299,   14   Sup.   Ct.   86,  37   L.   ed.   1085. 


393  RECEIVER'S  MANAGEMENT   OF  PROPERTY.         §  204 

ize  or  subsequently  approve.  As  we  have  already  seen, 
the  authority  may  frequently  be  inferred  from  the  terms 
of  the  order,  although  not  expressly  given.  Thus,  where 
the  order  directs  a  receiver  to  continue  the  business,  he 
is  impliedly  authorized  to  enter  into  necessary  contracts. 
A  party  dealing  with  him,  however,  is  bound  to  take 
notice  of  any  want  of  authority,  and  cannot  complain  if 
the  court  sets  aside  the  contract  as  unauthorized.^^  It 
has  been  held,  on  the  other  hand,  that  where  the  con- 
tracts are  such  as  the  receiver  has  discretion  to  make, 
and  there  is  nothing  to  show  any  excess  of  authority, 
the  court  will  not  repudiate  without  providing  com- 
pensation for  loss  incurred.2^  And  where  a  contract 
within  the  discretion  of  the  receiver  has  been  fully  per- 
formed, the  contractor  will  not  be  deprived  of  the  agreed 
compensation  merely  because  the  court  regards  the  con- 
tract as  improvident,  injudicious  and  unreasonable,  un- 
less it  appears  that  the  contractor  had  notice  of  its  im- 
proper character.2^  The  receiver  should  not  deal  with 
and  purchase  supplies  from  another  company  composed 
of  officials  under  him.^'^ 

24  Tripp  V.  Boardman,  49  Iowa,  410.  A  receiver  appointed  to  con- 
duct the  management  of  a  railroad  is  bound  by  a  transportation 
contract  made  by  his  freight  agent:  Farmers'  Loan  etc.  Co.  v.  North- 
ern Pac.  E.  Co.,  120  Fed.  873. 

25  Vanderbilt  v.  Central. R.  Co.,  43  N.  J.  Eq.  669,  12  Atl.  188;  Van- 
derbilt  v.  Little,  51  N.  J.  Eq.  289,  26  Atl.  1025.  See  State  Bank  of 
Virginia  v.  Domestic  S.  M.  Co.,  99  Va.  411,  86  Am.  St.  Rep,  891,  39 
S.   E.   141. 

26  Vanderbilt  v.  Central  R.  Co.,  43  N.  J,  Eq.  669,  12  Atl.  188. 

27  Clarke  v.  Central  R.  &  B.  Co.,  66  Fed.  16.  ("Parties  owing 
duties  to  the  railroad  by  reason  of  their  official  relations  thereto, 
and  connected  therewith,  could  not  be  permitted  to  deal,  directly  or 
indirectly,  through  the  form  of  a  company  with  the  receiver,  in  re- 
spect to  subjects  or  articles  they  might  have  to  sell  or  contract 
about.  Upon  well-settled  principles,  this  could  not  be  tolerated  by 
the  court.  The  dual  trust  relation  occupied  by  parties  in  such 
situations    would    forbid    such    transactions.") 


i  205  EQUITABLE   KEMEDIES.  394 

§  205.  Rights  in  Relation  to  Employees. — A  receiver  au- 
thorized by  the  court  to  continue  the  business  has  power 
to  hire  necessary  employees.^^  In  this  he  is  allowed  a 
wide  discretion,  and  the  court,  which  can  know  much 
less  about  the  business  than  the  receiver,  will  not  inter- 
fere unless  an  abuse  is  shown.^^  This  principle  applies 
with  special  force  to  a  receiver  appointed  to  look  after 
the  business  of  a  railroad.  In  recent  years  the  courts 
have  in  several  instances  been  required  to  pass  upon  dis- 
jmtes  between  receivers  and  employees  of  railroads,  and 
the  right  of  employees  to  be  heard  has  been  expressly  af- 
firmed.^*^  The  court  will  not  countenance  an  unreason- 
able reduction  of  the  salaries  of  railroad  employees  ;^^ 

28  Continental  Trust  Co.  v.  Toledo,  St.  L.  &  K.  C.  E.  Co.,  59  Fed. 
514;    Taylor   v.   Sweet,   40    Mich.    736. 

29  Continental  Trust  Co.  v.  Toledo,  St.  L.  &  K.  C.  E.  Co.,  59  Fed. 
514;   Taylor  v.  Sweet,  40  Mich.  736. 

30  Continental  Trust  Co.  v.  Toledo,  St.  L.  &  K.  C.  E.  Co.,  59  Fed. 
514. 

31  "The  first  and  supreme  duty  of  a  court  when  it  engages  in  the 
business  of  operating  a  railroad  is  to  operate  it  efficiently  and  safely. 
No  pains  and  no  reasonable  expense  are  to  be  spared  in  the  accom- 
plishment of  these  ends.  Passengers  and  freight  must  be  trans- 
ported safely.  If  passengers  are  killed  or  freight  lost  through  the 
slightest  negligence  to  provide  all  the  means  of  safety  commonly 
found  on  first-class  roads,  the  court  is  morally  and  legally  responsi- 
ble. An  essential  and  indispensable  requisite  to  the  safe  and  suc- 
cessful operation  of  the  road  is  the  employment  of  sober,  intelli- 
gent, experienced,  and  capable  men  for  that  purpose.  When  a  road 
comes  under  the  management  of  a  court  on  which  the  employees  are 
conceded  to  possess  all  these  qualifications — and  that  concession  is 
made  in  the  fullest  manner  here — the  court  will  not,  upon  light  or 
tiivial  grounds,  dispense  with  their  services  or  reduce  their  wages; 
and  when  the  schedule  of  wages  in  force  at  the  time  the  court  as- 
sumes the  management  of  the  road  is  the  result  of  a  mutual  agree- 
ment between  the  company  and  the  employees,  which  has  been  in 
force  for  years,  the  court  will  presume  the  schedule  is  reasonable 
and  just,  and  anyone  disputing  that  presumption  will  be  required  to 
overthrow  it  by  satisfactory  proof":  Ames  v.  Union  Pac.  Ey.  Co., 
62  Fed.  7,  per  Caldwell,  Cir.  J.  Where  the  wages  are  not  excessive 
merely  because  of  inability  of  the  road  to  pay  dividends  or  inter- 
est: United  States  Trust  Co.  v.  Omaha  &  St.  L.  Ey.  Co.,  63  Fed.  737, 


395  RECEIVER'S  MANAGEMENT   OF  PROPERTY.         §  2U5 

but  where  the  reduction  is  reasonable,  and  appears  to  be 
necessary,  the  receiver  will  be  authorized  to  take  such 
tiction.^2  It  will  generally  refuse  to  interfere  with  the 
receiver's  action  in  enforcing  rules  of  long  standing,  or 
in  dealing  with  strikers.^^  When  a  faithful  employee 
lias  been  injured  in  the  service  of  the  receiver,  without 
any  fault  of  either  party,  the  court  may  order  that  he  be 
])aid  wages  for  the  time  during  which  he  is  actually  in- 
capacitated.^* 

32  It  is  said  that  the  employees  mnst  show  an  abuse  of  the  discre- 
tion allowed  the  receiver  in  order  to  be  given  relief.  In  the  follow- 
ing cases  the  court  held  the  reductions  reasonable,  under  the  circum- 
stances: Continental  Trust  Co.  v.  Toledo,  St.  L.  &  K.  C.  R.  Co.,  59 
Fed.  514;  Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  62  Fed.  17. 

33  Thus,  in  Piatt  v.  Philadelphia  &  R.  R.  Co.,  65  Fed.  660,  the 
fourt  refused  to  restrain  a  receiver  from  enforcing  a  rule  prohibit- 
ing employees  from  becoming  members  of  labor  unions.  In  Booth 
V.  Brown,  62  Fed.  794,  the  court  refused  to  direct  a  receiver  to  re- 
employ  men   who   had   engaged  in   a   sympathetic   strike. 

34  "To  pay  the  intervener  for  his  lost  time  is  a  gratuity,  of  course, 
there  being  no  legal  liability  on  the  part  of  the  receivers.  The  view 
of  the  circuit  judge  doubtless  was  that  the  receivers,  as  officers  of 
the  court,  should  be  required  to  act  toward  their  employees  as  per- 
sons of  ordinary  humanity  and  right  feeling  would  do  under  similar 
circumstances  toward  their  employees.  If  an  individual  acting  for 
himself,  or  even  as  head  of  the  corporation,  who  has  a  faithful  em- 
ployee who  is  injured,  although  without  any  fault  on  the  part  of  the 
employer  or  the  other  employees,  the  injured  employee  being  him- 
self free  from  fault,  the  employer,  if  actuated  by  proper  feeling, 
would  feel  disposed  to  at  least  allow  the  injured  person  compensa- 
tion for  his  lost  time":  Thomas  v.  East  Tennessee,  V.  &  G.  Ry. 
Co.,  60  Fed.  7,  per  Newman,  D,  J.  It  is  certainly  a  novelty  to  rest 
such  a  doctrine  upon  humanity.  Officers  of  corporations,  and  re- 
ceivers as  well,  are  not  permitted  to  use  funds  for  merely  charitable 
purposes.  It  is  submitted  that  the  true  reason  for  authorizing  such 
action  is  that  a  receiver,  as  well  as  a  corporation,  can  obtain  better 
service  from  all  of  his  employees  by  treating  liberally  those  injured 
in  his  service.  Wages  were  allowed  injured  employees  in  Missouri 
Pac.  R.  Co.  V.  Texas  &  P.  R.  Co.,  33  Fed.  701,  and  upon  another 
application  in  the  same  receivership  in  41  Fed.  319.  To  the  effect 
that  only  faithful  employees  are  entitled  to  such  consideration  see 
Thomas  v.  East  Tennessee,  V.  &  G.  Ry.  Co.,  60  Fed.  7. 


i   -uu  EQUITABLE   REMEDIES.  39a 

§  206.  Right  to  Employ  Attorneys. — A  receiver  has  a 
right  to  employ  counsel  to  advise  him  as  to  the  manage- 
ment of  the  property  placed  in  his  hands,  and  as  to  his 
duties  in  the  premises.^'^  The  compensation  of  such 
attorneys  is  fixed  by  the  court,  and  is  not  governed  by 
agreement  between  the  parties.^®  In  general,  the  re- 
ceiver is  allowed  to  select  his  own  counsel,  subject, 
however,  to  certain  limitations.  He  is  not  allowed  to 
select  an  attorney  of  one  of  the  parties  to  the  proceed- 
ing in  which  he  was  appointed,  when  the  interests  in- 

35  Hubbard  v.  Camperdown  Mills,  25  S.  C.  496,  1  S.  E.  5.  "First, 
it  is  for  necessary  legal  assistance  that  allowance  may  be  made. 
A  trustee  has  no  authority  to  employ  attorneys,  at  the  expense  of 
the  estate,  to  perform  the  ordinary  duties  of  the  trust  or  office  which 
any  ordinarily  competent  business  man  is  presumed  to  be  capable  of 
performing.  Those  are  his  duties,  and  he  is  paid  for  them.  It  is 
for  services  requiring  special  legal  skill  that  he  will  be  allowed 
counsel  fees.  To  illustrate:  He  may  have  an  attorney  to  obtain 
for  him  a  necessary  order  of  court  to  sell  a  stock  of  goods,  but  he 
can  carry  out  the  order  as  well  as  the  attorney His  accept- 
ance of  the  trust  presupposes  that  he  is  capable  of  performing  all 
such  duties,  and,  if  he  employs  attorneys  to  advise  and  assist  him 
in  performing  them,  he  must  do  so  at  his  own  expense.  So,  also, 
no  legal  skill  is  required  in  insuring  and  repairing  storehouses,  and 
in  renting  them  out  and  collecting  rents.  Any  business  man,  also, 
can  assess  and  pay  taxes.  If  a  demand  is  made  upon  the  receiver, 
of  questionable  legality,  he  may  have  legal  advice  and  aid  in  refer- 
ence to  it.  If  he  has  a  demand  upon  another,  whose  legality  is 
questioned,  or  which  requires  legal  aid  to  enforce  it,  he  may  have 
an  attorney":  Henry  v.  Henry,  103  Ala.  582,  15  South.  916.  See, 
also,  Olson  v.  State  Bank,  72  Minn.  320,  75  N.  W,  378. 

se  "It  may  be  very  proper  for  a  receiver  to  have  counsel  to  aid 
and  advise  him  concerning  legal  questions  arising  in  his  manage- 
ment of  the  estate;  but  his  contract  for  a  term  of  employment  or  a 
rate  of  compensation,  from  the  very  nature  of  his  office,  must  be 
subject  to  the  power  of  the  court  to  conclude  the  one  or  to  disallow 
the  other.  And  questions  of  this  nature  belong  to  the  court  con- 
trolling and  settling  the  receivership.  The  right  of  the  attorney  to 
charge  the  property  in  court  with  his  fee  does  not  arise  from  the 
mere  contract  with  the  receivers":  International  &  G.  N.  R.  Co.  v. 
Herndon,  11  Tex.  Civ.  App.  465,  33  S.  W.  377.  See,  also,  Hickey  v. 
Parrot    Silver   &   Copper   Co.    (Mont.),   79   Pac.    698. 


397  EECEIVEE'S  MANAGEMENT  OF  PROPERTY.         §  207 

volved  are  likely  to  be  conflicting.^'^  Where  the  re- 
ceiver is  not  acting  adversely  to  the  parties,  and  there 
is  no  conflict,  he  may  select  such  an  attorney.^^  Where 
a  receiver  is  himself  an  attorney,  he  is  still  entitled  to 
aid  of  counsel;  and  if  he  acts  as  his  own  attorney,  he 
is  not  entitled  to  any  additional  compensation  there- 
for.^* 

§  207.  Right  to  Make  Repairs,  Improvements,  etc. — A 
receiver  is  appointed  to  preserve  the  property  pending 
the  litigation,  and  consequently,  he  will  be  authorized 
to  make  such  repairs  as  are  necessary  to  keep  the  prop- 
erty from  deterioration.^^  The  extent  of  repairs  will 
depend  largely  upon  the  nature  of  the  business,  and 
whether  it  is  being  actively  carried  on  by  the  receiver. 
In  many  matters  of  minor  importance  he  is  allowed  to 

37  Veith  V.  Eess,  60  Neb.  52,  82  N.  W.  116;  Blair  v.  St.  Louis, 
H.  &  K.  E.  R.  Co.,  20  Fed.  348.  In  this  last  case  the  court  proceeded 
to  say:  "It  seems  that  one  who  accepts  the  office  of  receiver  under 
an  appointment  of  this  court  ought  to  find  some  competent  attorney 
of  this  court,  and  responsible  to  it,  to  aid  him  with  legal  advice 
if  needed.  If  the  bar  of  this  circuit  is  so  poor  in  ability  or  integrity 
as  to  have  no  member  thereof  fit  for  the  desired  position,  then  it 
might  be  well  to  seek  elsewhere  for  needed  aid.  This  court  is  not 
prepared  to  make  even  impliedly  such  a  reflection  on  the  bar  of 
this  circuit,  nor  will  it  grant  a  motion  which  seeks  to  make  one, 
however  able,  but  who  is  not  a  member  of  this  bar,  or  has  just  come 
here  with  respect  to  this  case  mainly,  so  far  as  I  know,  the  appointee 
of  this  court  as  attorney  and  counselor  of  its  officers;  nor  will  it 
sanction  by  its  appointment  the  introduction  from  abroad  of  anyone, 
especially  a  kinsman  of  the  receiver,  through  the  latter 's  solicita- 
tion, under  circumstances  stated,  to  fill  a  position  which  others  long 
known  to  the  court  are,  to  say  the  least,  equally  able  to  fill." 

38  Smith  V.  New  York  Con.  Stage  Co.,  18  Abb.  Pr.  419;  United 
States  V.  Late  Corp,  of  Church  etc.,  6  Utah,  9,  21  Pac.  516, 

39  Olson  V.  State  Bank,  72  Minn.  320,  75  N.  W.  378. 

40  Wallace  v.  Loomis,  97  U.  S.  146,  24  L.  ed.  895;  Union  Trust  Co. 
V.  Illinois  Midland  Ey.  Co.,  117  U.  S.  434,  6  Sup.  Ct.  809,  29  L.  ed. 
963;  Hoover  v,  Montclair  &  Greenwood  Lake  Ey.  Co.,  29  N.  J.  Eq. 
4;  Karn  v,  Eorer  Iron  Co.,  86  Va,  754,  11  S,  E.  431. 


S  208  EQUITABLE    REMEDIES.  398 

use  his  discretion.^^  He  is  sometimes  permitted  to  make 
improvements  and  additions,  such  as  the  completion  of 
a  new  line  of  railroad  already  begun  ;'*2  ^^t  generally 
the  court  hesitates  to  grant  such  authority.  The  prin- 
ciple upon  which  these  are  allowed  is  that  they  are  es- 
sential to  the  profitable  enjoyment  of  the  estate  and  in- 
ure to  its  permanent  betterment.  If  not  essential,  the 
court  will  not  speculate  upon  the  probable  result.*' 
Under  circumstances  showing  the  great  desirability,  the 
court  may  authorize  the  receiver  to  add  to  an  existing 
line  by  leasing  another.** 

§  208.    Right  to  Lease  Property. — The    court    may    au- 
thorize its  receiver  to  lease  certain  of  the  property  in 

41  Cowdrey  v.  Railroad   Co.,  1  Woods,  336,  Fed.  Cas.   No.   3293. 

42  Wallace  v.  Loomis,  97  U.  S.  146,  24  L.  ed.  895;  Union  Trust  Co. 
V.  Illinois  Midland  Ry.  Co.,  117  U.  S.  434,  6  Sup.  Ct.  809,  29  L.  ed. 
963;  Kennedy  v.  St.  Paul  &  P.  R.  Co.,  5  Dill.  519,  Fed.  Cas.  No.  7707; 
Stanton  v.  Alabama  &  C.  R.  Co.,  2  Woods,  506,  Fed.  Cas.  No.  13,296; 
Jefferson  v.  Edrington,  53  Ark.  545,  14  S.  W.  99.  In  Wallace  v. 
Loomis,  supra,  a  receiver  was  appointed  "with  power  to  put  the 
road  and  property  in  repair,  and  to  complete  any  uncompleted  por- 
tions thereof,  and  to  procure  rolling  stock,  and  to  manage  and  oper- 
ate the  road  to  the  best  advantage,  so  as  to  prevent  the  property 
from  further  deteriorating,  and  to  save  and  preserve  it  for  the  bene- 
fit and  interest  of  the  first  mortgage  bondholders,  and  all  others  hav- 
ing an  interest  therein." 

43  Hand  v.  Savannah  &  C.  R.  Co.,  10  S.  C.  406.  See,  also,  Pueblo 
Traction   &   Electric   Co.   v.   Allison,   30   Colo.   337,   70   Pac.   424. 

44  "A  court  of  equity  having  in  charge  the  mortgaged  property 
of  a  railroad  company,  is  authorized  to  do  all  acts  that  may  be 
necessary  within  its  corporate  power  to  preserve  the  property,  and 
to  give   to  it  additional  value,  not  only  for  the  benefit  of  the  lien 

creditors,   but   also   for   the   benefit   of   the   company Any   act, 

it  would  seem,  necessary  for  the  protection  and  preservation  of  the 
property,  is  a  legitimate  and  proper  act,  and  whatever  is  manifestly 
appropriate  to  such  preservation  and  protection,  or  to  the  enhance- 
ment of  the  value  of  the  property,  not  in  excess  of  the  powers  of 
the  corporation,  will  always  be  upheld  and  enforced  by  the  courts": 
Gibert  v.  Washington  City,  V.  M.  &  G.  S.  R.  Co.,  33   Gratt.  586. 


399  SALES   BY    RECEIVER.  S  209 

his  possession.'*'  The  court  "should  act  with  great  cir- 
cumspection, and  see  to  it  that  the  lease  is  not  given  for 
such  a  period  of  time  as  will  needlessly  prolong  the  liti- 
gation or  endanger  the  rights  of  any  parties  thereto.  If 
need  be,  clauses  should  be  inserted  in  such  leases  reserv- 
ing to  the  court  the  power  to  cancel  them  whenever  it 
is  deemed  expedient  to  do  so."*^  If  no  such  right  is 
reserved,  the  lessee  is  entitled  to  damages  upon  ter- 
mination.^'^ 

§  209.  Sales — In  General. — When  the  interests  of  the 
parties  demand  it,  or  make  it  desirable,  the  court  may  or- 
der a  receiver  to  sell  the  whole  or  a  part  of  the  property. 
What  facts  are  sufficient  to  induce  the  court  to  make 
such  an  order  must  of  necessity  vary  with  the  circum- 
stances of  each  particular  case.  When  it  appears  that 
affairs  are  rapidly  growing  worse  under  the  receiver's 
management,  and  a  majority  of  those  interested  believe  a 
sale  to  be  desirable,  it  may  be  ordered.^®  On  the  other 
hand,  when  the  condition  of  the  property  is  such  that  an 
immediate  sale  will  result  in  great  loss,  and  where  the 
purposes  of  the  receivership  have  not  been  accomplished, 
the  order  will  be  refused.^^  An  order  which  directs 
a  receiver  to  sell  all  the  real  estate  in  his  hands  has  been 
held  sufficient  to  authorize  him  to  sell  any  particular 
piece.^^ 

45  Mercantile  Trust  Co.  v.  Missouri,  K.  &  T.  Ry.  Co.,  41  Fed.  8,  11; 
Farmers'  Loan   etc.  Co.  v.  Eaton,   114  Fed.   14,  51  C.   C.  A.   640. 

46  Farmers'  Loan  etc.  Co.  v.  Eaton,  114  Fed.  14,  51  C.  C.  A.  640. 

47  Farmers'  Loan  etc.  Co.  v.  Eaton,  114  Fed.  14,  51  C.  C.  A.  640. 
See,  also,  McAnally  v.  Glidden,  30  Ind.  App.  22,  65  N.  E.  291. 

48  First  Nat.  Bank  v.  Shedd,  121  U.  S.  74,  7  Sup.  Ct.  807,  30  L. 
ed.  877.  A  sale  may  be  ordered  without  a  right  of  redemption: 
Denny  v.  Broadway  Nat.  Bank,  118  Ga.  221,  44  S.  E.  982. 

49  Bibber-White  Co.  v.  White  River  Val.  Electric  E.  Co.,  110 
Fed.  473. 

50  Barron  v.  Mullin,  21  Minn.  374. 


I  210  EQUITABLE   REMEDIES.  400 

§  210.  Sale  is  Subject  to  Confirmation. — A  sale  by  a  re- 
ceiver is  a  judicial  sale,  and,  as  a  general  rule,  is  subject 
to  confirmation  by  the  court.^^  In  many  states  the  pro- 
ceedings are  regulated  entirely  by  statute,  and  the  valid- 
ity of  the  sale  depends  upon  a  strict  adherence  to  the 
statutory  provisions.  "The  rule  is  almost  universal 
that,  at  a  sale  by  a  master  or  receiver  under  an  order 
or  decree  in  equity  which  contemplates  a  subsequent 
report  and  a  confirmation  of  the  sale,  a  bidder  becomes  a 
purchaser  when  the  officer  announces  the  sale  to  him. 
Thereafter  he  may  be  compelled  to  complete  his  pur- 
chase, and  pay  the  price  which  he  offered. "^^  Mere  in- 
adequacy of  the  price  is  not,  in  general,  sufficient  to  au- 
thorize a  refusal  of  confirmation,  unless  it  be  gross.^' 
And  where  the  consideration  is  fair,  it  has  been  held 
that  confirmation  will  not  be  refused  merely  to  let  in  a 

51  It  has  been  held  that  such  a  sale  is  impliedly  subject  to  confirma- 
tion or  rejection:  Patterson  v.  Patterson  Dry  Goods  Co.,  207  Pa.  St. 
252,   56   Atl.   442. 

52  Files  V.  Brown,  124  Fed.  133,  59  C.  C.  A.  403,  per  Sanborn,  Cir.  J. 

53  Files  V.  Brown,  124  Fed.  133,  59  C.  C.  A.  403.  The  rule  is  stated 
by  Grey,  V.  C,  in  Porch  v.  Agnew  Co,  (N.  J.  Eq.),  57  Atl.  726,  as 
follows:  "The  rule  is  settled  that  mere  inadequacy  of  price  is  not 
of  itself  sufficient  ground  for  refusing  confirmation  of  a  judicial  sale. 
The  variance  between  the  bids  reported  and  the  fair  market  value 
must  be  so  great  as  to  bring  the  court  to  the  opinion  that  serious 
injustice  would  be  done  by  a  confirmation— so  great,  indeed,  that 
the  purchaser  himself  could  not  fairly  expect  the  court  to  ratify 
the  sale,  which  he  was  notified  it  must  do,  in  order  that  his  bid 
should  be  finally  accepted."  In  this  case  the  property  was  shown 
to  be  worth  probably  four  times  the  amount  of  the  bids.  This  was 
held  to  be  an  inadequacy  so  gross  as  to  warrant  a  refusal  of  con- 
firmation, but  the  court  made  a  condition  that  a  bond  should  be 
filed  assuring  the  presentation  of  substantially  higher  bids.  Ii» 
Strickland  v.  National  Salt  Co.,  88  N.  Y.  Supp.  323,  43  Misc.  Rep. 
172,  confirmation  was  refused  for  a  sale  at  a  price  amounting  to 
less  than  one-half  of  the  value.  After  confirmation,  the  sale  becomes 
final:   Thompson  v.  Brownlie,  25  Ky.  Law  Rep.  622,  76  S.  W.  172. 


401  SALES  BY  RECEIVEE.  S$  211,  212 

higher  hid.''^    It  has  been  held  that  such  sales  are  a\y 
solute,  and  that  there  is  no  right  of  redemptioDv"' 

§  211.  Personal  Property.— The  same  strictness  is  not 
required  in  regard  to  sales  of  personal  property.  As  a 
general  rule,  an  order  should  be  obtained  before  any  sale 
of  importance  is  made.  When  the  receiver  is  authorized 
to  continue  the  business,  certain  sales  are,  of  course,  au- 
thorized. In  other  cases,  it  is  sometimes  permissible 
for  the  receiver  to  sell  part  of  the  property  and  obtain 
subsequent  approval  from  the  court.  Such  sales,  when 
ratified,  are  as  valid  as  those  authorized  in  the  first  in- 
stance.^* 

§  212.  Sale  is  Subject  to  Existing  Liens. — A  receiver's  sale 
is  subject  to  liens  of  those  who  are  not  parties  to  the  re- 
ceivership proceedings.^^  A  lienholder  has  a  right  of 
which  he  cannot  be  deprived  without  an  opportunity  for 
a  day  in  court  A  purchaser  is  bound  to  take  such  title 
as  an  examination  of  the  proceedings  shows  that  he  will 
get.^*  He  is  bound  to  examine  for  himself  beforehand  to 
see  what  title  he  will  obtain  by  the  sale.  By  statute  in 
New  Jersey,  sales  may  be  made  free  from  liens  in  cases 
where  the  property  is  likely  to  deteriorate  and  there  is  a 

54  Rogers  v.  Rogers  Locomotive  Co.,  62  N,  J.  Eq.  Ill,  50  Atl.  10 
("the  settled  policy  of  our  law  has  been  to  encourage  bidding  and 
purchases  at  public  sales,  and  that  purchasers  making  bona  fide 
bids  are  to  be  protected   in  the   advantages  of  a  fair  purchase"). 

55  Watkins  v.  Minnesota  Thresher  Mfg.  Co.,  41  Minn.  150,  42  N. 
W.  862.  See,  also.  Mercantile  Realty  Co.  v.  Stetson,  120  Iowa,  324, 
64  N.  W.  859  (holding  that  the  court,  by  its  order,  may  declare  that 
there  shall  be  no  right  of  redemption). 

50   Tobin  V.  Portland  Flouring  Mills,  41  Or.  269,  68  Pac.  749,  1108. 

57  Lorch  V.  Aultman,  75  Ind.  162;  Snow  v.  Winslow,  54  Iowa,  200, 
6  N.  W.  191:  In  re  Coleman,  174  N.  Y.  373,  66  N.  E.  983. 

58  Campbell  v.  Parker,  59  N.  J.  Eq.  342,  45  Atl.  116;  Fall  &  Sock- 
eye  Fish  Co.  V.  Point  Roberts  F.  &  C.  Co.,  24  Wash.  630,  64  Pac.  792, 

Equitable  Remedies,  Vol.  I — 26 


55  213,  214  EQUITABLE  REMEDIES.  402 

contest  either  as  to  the  validity  or  as  to  the  relative 
standing  of  the  liens.^*  In  such  case  the  court  will 
hold  the  proceeds  until  the  rights  are  determined. 

§  213.  Effect  of  Eeversal  of  Order  Appointing  Receiver. — 
Where,  upon  appeal  from  an  order  appointing  a  re- 
ceiver, it  is  determined  that  the  action  of  the  court  in 
making  the  appointment  and  in  issuing  other  orders 
was  beyond  its  jurisdiction,  the  sale,  of  necessity,  fails. 
The  purchaser  becomes  entitled  to  the  return  of  the 
price  paid,  and  the  property  sold  must  be  returned  by 
him.^o 

§  214.  Receivers'  Certificates — In  General. — Receivers 
of  railroad  corporations,  and  perhaps  of  a  few  other 
quasi  public  corporations,  may  be  authorized  to  borrow 
money  and  to  incur  indebtedness  for  the  general  pur- 
pose of  carrying  out  the  obligation  of  the  corporation 
to  the  public.®^    As  security,  certificates  may  be  issued, 

59  Emmons  v.  Davis  &  Dowd  Pottery  Co.  (N.  J.  Ch.),  16  Atl.  158; 
Randolph  v.  Lamed,  27  N.  J.  Eq.  557. 

60  Lutej  V.  Clark  (Mont.),  77  Pac.  305.  ("The  decision  of  this 
court  was  to  the  effect  that  no  sale  had  been  made;  in  other  words, 
that  the  pretended  sale  was  without  effect,  and  conveyed  no  title  to 
the  property.  Hubbard,  having  received  the  money  belonging  to 
Lutey  Bros,  on  such  void  sale,  became  (on  such  sale  being  declared 
void)  an  involuntary  trustee  of  Lutey  Bros,  for  the  amount  of 
moaey  received  from  them;  and  likewise  Lutey  Bros.,  having  re- 
ceived such  goods  on  such  pretended  sale,  became  an  involuntary 
trustee  for  the  mercantile  company  for  the  goods  which  they  retained 
and  for  the  money  which  they  had  received  from  a  sale  of  the 
portion  of  the  goods  disposed  of  by  them.") 

ci  Wallace  v.  Loomis,  97  U.  S.  146,  24  L.  ed,  895;  Union  Trust 
Co.  V.  Illinois  Midland  Ry.  Co.,  117  U.  S.  434,  6  Sup.  Ct.  809,  29  L. 
ed.  963;  Hoover  v.  Montclair  &  Greenwood  L.  R.  Co.,  29  N.  J.  Eq. 
4.  The  reasons  for  the  doctrine  are  well  stated  in  Meyer  v.  John- 
ston, 53  Ala.  237:.  "But  the  inconvenience  and  loss  which  this  [tho 
deterioration  of  the  property]  would  inflict  upon  the  population  of 
large   districts,   coupled   with   the   benefit   to  parties  who   perhaps  are 


403  EECEIVERS'  CERTIFICATE.  {  215 

to  take  priority  over  the  mortgage  indebtedness.  The 
reason  for  the  rule  is  that  such  corporations  owe  a 
peculiar  duty  to  the  public  to  keep  their  properties  in 
operation.  Lienholders  take  their  obligations  with  that 
understanding,  and  when  they  seek  to  foreclose,  they 
will  not  be  permitted  to  interfere  with  this  paramount 
public  duty.  This  reasoning  does  not  apply  to  purely 
private  corporations,  and  consequently  it  is  generally 
held  that  in  receiverships  of  such  corporations  no  dis- 
placement of  the  mortgage  priority  by  certificates  is 
allowable.''^  Some  cases  have  extended  the  doctrine  to 
other  quasi  public  corporations  owing  a  similar  pub- 
lic duty,  but  it  is  in  cases  of  railroads  that  the  doctrine 
finds  its  most  frequent  application.^^ 

§  215.    Nature    of    Certificates.— Receivers'    certificates 
depend  for  their  validity  upon  the  order  of  the  court  au- 

powerless  to  take  care  of  themselves,  of  preventing  the  rapid  dim- 
inution of  value,  and  derangement  and  disorganization  that  would 
otherwise  result,  seem  to  require,  not  for  the  completion  of  an  un- 
finished work,  or  the  improvement,  beyond  what  is  necessary  for 
its  preservation,  of  an  existing  one,  but  to  keep  it  up,  to  conserve 
it  as  a  railroad  property,  if  the  court  has  been  obliged  to  take  pos- 
session of  it,  that  the  court  should  borrow  money  for  that  purpose, 
....  by  causing  negotiable  certificates  of  indebtedness  to  be  is- 
sued, constituting  a  first  lien  on  the  proceeds  of  the  property  and  re- 
deemable when  it  ia  sold  or  disposed  of  by  the  court."  We  shall 
see  later  that  the  certificates  are  not  negotiable  in  the  sense  in  which 
that  term  is  used  in  the  law  merchant. 

62  Farmers'  Loan  etc.  Co.  v.  Grape  Creek  Coal  Co.,  50  Fed.  481 
(not  allowed  in  receivership  of  mining  corporation);  International 
Trust  Co.  V.  United  Coal  Co.,  27  Colo.  246,  83  Am.  St.  Eep.  59,  60 
Pac.  621;  Standley  v.  Hendrie  &  Balthoff  Mfg.  Co.,  27  Colo.  331 
61  Pac.  600;  Belknap  Sav.  Bank  v.  Lamar  Land  etc.  Co.  28  Colo. 
326,  64  Pac.  212;  Hooper  v.  Central  Trust  Co.,  81  Md.  559,  32  Atl. 
505,   29  L.  R.  A.  262. 

63  Farmers'  Loan  etc.  Co.  v.  Bankers  &  M.  Tel.  Co.,  148  N.  Y.  315 
51  Am.  St.  Eep.  690,  42  N.  E.  707,  31  L.  R.  A.  403  (telegraph  com- 
pany) ;  Ellis  V.  Vernon  Ice,  Light  &  Water  Co.,  86  Tex.  109  23  S. 
W.   858    (water   company). 


i  216  EQUITABLE   EEMEDIES.  4M 

thorizing  them,  and  they  are  not  negotiable  instru- 
ments.®^ A  purchaser  is  not  bound,  however,  to  see  to 
the  application  of  the  proceeds.^^  They  constitute  a  lien 
upon  the  property  prior  to  the  first  mortgage  bonds.®' 
As  between  certificates,  priority  has  been  given  to  those 
issued  to  pay  for  operating  expenses  over  those  issued 
to  pay  preferred  claims.®'^  In  order  that  the  priority 
over  the  mortgage  may  be  certain,  it  is  necessary  that 
notice  of  the  application  for  authority  be  given  to  the 
parties  interested.  "The  receiver,  and  those  lending 
money  to  him  on  certificates  issued  on  orders  made 
without  prior  notice  to  parties  interested,  take  the  risk 
of  the  final  action  of  the  court  in  regard  to  the 
loans."®*  Receivers'  certificates,  being  merely  evi- 
dences of  indebtedness,  can  have  no  higher  character 
than  the  debts  of  which  they  are  representatives.** 

§  216.  Purposes  for  Which  Certificates  may  be  Issued. — 
In  general,  it  may  be  stated  that  money  may  be  bor- 

84  Union  Trust  Co.  v.  Chicago  &  Lake  H.  R.  Co.,  7  Fed.  513;  Stan- 
ton y.  Alabama  &  C.  R.  Co.,  2  Woods,  506,  Fed.  Cas.  No.  13,296; 
Turner  v.  Peoria  &  S.  R.  Co.,  95  111.  134,  35  Am.  Rep.  144. 

65  Union  Trust  Co,  v.  Illinois  Midland  Ry.  Co.,  117  U.  S.  434,  6 
Sup.  Ct.  809,  29  L.  ed.  963;  Stanton  v.  Alabama  &  C.  R.  Co.,  2 
Woods,  506,  Fed.  Cas.  No.  13,296. 

66  Wallace  v.  Loomis,  97  U.  S.  146,  24  L.  ed.  895;  Union  Trust 
Co.  V.  Illinois  Midland  Ry.  Co.,  117  U.  S.  434,  6  Sup.  Ct.  809,  29  L. 
ed.  963;  Miltenberger  v.  Logansport  R.  R.  Co.,  106  U.  S.  287,  1  Sup. 
Ct.  140,  27  L.  ed.  117.  Certificates  have  been  held  prior  to  a 
vendor's  lien  for  rails:  Royal  Trust  Co.  v.  Washburn,  B.  &  Q.  R.  Co., 
120  Fed.  11,  57  C.  C.  A.  3L 

67  Bank  of  Commerce  v.  Central  Coal  &  Coke  Co.,  53  C.  C.  A.  334, 
115  Fed.   878. 

68  Union  Trust  Co.  v.  Illinois  Midland  Ry.  Co.,  117  U.  S.  434,  6 
Sup.  Ct.  809,  29  L.  ed.  963;  Raht  v.  Atrill,  106  N.  Y.  423,  60  Am. 
Rep.  456,  13  N.  E.  282. 

69  Fidelity  I.  &  S.  D.  Co.  v.  Shenandoah  Co.,  42  Fed.  372.  To  the 
effect  that  such  certificates  are  subject  to  mechanics'  liens,  see  Gor- 
don y.  Newman,  62  Fed.  686,  10  C.  C.  A.  587. 


405  BECEIVEE'S  LIABILITY.  §  217 

rowed  and  certificates  issued  for  pui'poses  of  protect- 
ing and  safely  operating  the  property  in  the  hands  of 
the  receiver.  In  a  leading  case  they  were  authorized 
for  necessary  repairs,  for  betterments,  and  for  the  pay- 
ment of  tax  liens J^  They  may  be  issued  to  pay  for  nec- 
essary improvements,  such  as  additions  to  the  line  or 
equipment.'^  They  have  been  authorized  to  enable  the 
receiver  to  obtain  funds  with  which  to  prosecute  a  suit 
for  the  collection  of  rent  of  a  leased  line.'^^  In  a  num- 
ber of  instances  they  have  been  issued  in  payment  of 
preferred  claims,  such  as  claims  for  labor,  materials 
and  supplies  furnished  a  reasonable  time  before  the  re- 
ceivership.^^ In  all  cases  the  issuance  depends  upon 
the  necessity  of  the  matter  for  which  money  is  desired. 
For  instance,  if  it  is  proper  for  the  court  to  authorize 
improvements  or  repairs,  it  may  direct  that  money  be 
borrowed  to  pay  for  them.  If,  on  the  other  hand,  such 
work  is,  under  the  circumstances,  not  necessary,  the 
application  for  an  order  must  fail. 

§  217.  Liability  for  Fraud,  Negligence,  etc. — A  receiver 
is  bound  to  exercise  such  diligence  in  the  care  and  man- 

70  Union  Trust  Co.  v.  Illinoig  Midland  Ey.  Co.,  117  U.  S.  434,  6 
Sup.  Ct.  809,  29  L.  ed.  963.  In  the  following  cases  they  were  au- 
thorized for  necessary  repairs:  Credit  Co.,  Ltd.,  v.  Arkansas  Cent. 
R.  Co.,  15  Fed,  46,  5  McCrary,  23;  Hoover  v.  Montclair  &  Green- 
wood Lake  Ey.  Co.,  29  N,  J.  Eq.  4. 

71  Miltenberger  v.  Logansport  E.  E.  Co.,  106  U.  S.  287,  1  Sup.  Ct. 
140,  27  L.  ed.  117  (issued  for  purposes  of  obtaining  rolling  stock,  and 
for  building  six  miles  of  road  and  a  bridge,  part  of  the  main  lino 
of  a  road  ninety-two  miles  long).  See,  however,  Bibber-White  Co. 
V.  White  Eiver  Val.  E.  E.  Co.,  53  C,  C.  A.  282,  115  Fed.  786,  where 
an  extension  of  the  line  would  have  been  speculative  and  the  court 
held  an  issuance  of  certificates  for  such  purpose  error. 

72  Town  of  Vandalia  v.  St.  Louis,  V,  &  T.  H.  E.  Co.,  209  111.  73, 
70   N.   E.   662. 

73  Union  Trust  Co.  v.  Illinois  Midland  Ey.  Co.,  117  U.  S.  434,  6 
Sup.  Ct.  809,  29  L.  ed.  963;  Miltenberger  v.  Logansport  Ey.  Co., 
lUli  U.  S.  287,  1  Sup.  Ct.  140,  27  L.  ed.  117. 


S  217  EQUITABLE   EEMEDIES.  406 

agement  of  the  property  as  a  prudent  man  would  ex- 
ercise in  closing  up  his  own  estate.  If,  through  his 
neglect,  a  loss  occurs,  he  is  personally  liable.  Thus, 
where  he  neglects  to  collect  certain  claims  which  might 
have  been  collected,  he  is  liable  and  will  be  held  for  the 
amount  lostJ*  In  order,  to  charge  him,  however,  it  has 
been  held  that  the  loss  must  be  traced  directly  to  his 
neglectJ^  He  is  not  an  insurer  of  the  property,  and  is 
not  a  guarantor  that  any  particular  results  will  be 
worked  outJ°  He  must  not  become  interested  in  any 
way  in  the  property  intrusted  to  him,  and  he  must  not 
use  it  for  his  own  advantage.  For  instance,  he  must 
not  loan  money  to  himself  nor  to  a  firm  of  which  he  is 
a  member. '^^  And  a  mortgage  taken  by  him  upon  prop- 
erty held  by  him  as  receiver  to  secure  a  debt  to  him  per- 
sonally, is  void  as  against  public  policy."^^ 

74  In  re  Angell,  131  Mich.  345,  91  N.  W.  611,  9  Detroit  Leg.  N.  380. 

75  Thus,  the  fact  of  allowing  animals  to  remain  on  a  Texas  cattle 
range,  where  they  were  lost,  and  a  failure  to  insure  property  which 
afterwards  burned,  have  been  held  to  charge  no  loss  upon  the  re- 
ceiver: Hamm  v.  J.  Stone  &  Sons  Livestock  Co.,  13  Tex.  Civ.  App. 
414,   35   S.   W.  427. 

76  Ripley  v.  McGavic,  120  Iowa,  52,  94  N.  W.  452. 

77  Eyan  v.  Morrill,  83  Ky,  352;  Cook  v.  Martin  (Ark.),  87  S.  W. 
625,  quoting  Pom.   Eq.  Jur.,  §   1075. 

78  Thompson  v.  Holladay,  15  Or.  34,  14  Pac.  725. 


407 


EECEIVEES;  CLAIMS  AND  ALLOWANCES. 


CHAPTER  IX. 


EECEIVEES;  CLAIMS  AND  ALLOWANCES. 


ANALYSIS. 


?  218. 

s§ 

219-237. 

§  219. 

§  220. 

§  221. 

§  222. 

§  223. 

S8 

224-237. 

§  224. 

§  225. 

§  226. 

§  227. 

§§ 

228,  229. 

§  229. 

§§ 

230,  23L 

§  231. 

§  232. 

§  233. 

<§ 

234-237. 

§  234. 

§  235. 

S  236. 

§  237. 

ii 

238-243. 

§  238. 

i  239. 

§  240. 

§  241. 

§  242. 

§  243. 

§  244. 

S  245. 

Duties  and  rights  of  receiver  in  regard  to  claims. 

Priority  of  claims. 

Taxes. 

Expenses  of  receivership. 

What  are  proper  expenses. 

Expenses   of   continuing  business. 

Same;  liability  for  torts. 

Claims     arising      prior      to     receivership^' 'Preferred 

claims." 
Statement  and  rationale  of  doctrine. 
Growth    of    the    doctrine. 
To  what  receiverships  the  doctrine  applies. 
Time   within  which  debts  must  have  been  contractedL 
Labor  claims. 
Extent  of  this  class. 
Claims  for  supplies. 
No  priority  when  credit  given. 

Claims    for    repairs — Construction — Beconstruction. 
Miscellaneous    claims. 
Claims  denied  priority. 
Money    loaned. 
Rental   of  leased   lines. 
Car    rentals— Track    rentals. 
Personal    injuries. 
Compensation  of  receiver. 
In   general. 

Discretion   as   to   amount. 
Matters  considered  in  determining  amount. 
Effect    of    revocation    or   reversal    of    order    appointing 

receiver. 
Effect    of    agreement. 
Effect  of  adjudication  of  bankruptcy. 
Payment  of  costs  when  fund  not  sufficient. 
Payment  of  costs  where  receivership  proceedings  void. 


§5  218,  219  EQUITABLE  REMEDIES.  408 

§  218.  Duties  and  Rights  of  Receiver  in  Regard  to  Claims. 
A  receiver  is  "charged  with  the  duty  of  carrying  into 
execution  the  orders  of  the  court,  but  he  is  also  a  cus- 
todian of  property,  and  has,  by  virtue  of  such  custody, 
certain  obligations  to  the  parties  owning  or  interested 
therein.^  Accordingly,  he  may  defend,  both  in  the 
court  appointing  him  and  by  appeal,  the  estate  in  his 
possession  against  all  claims  which  are  antagonistic  to 
the  rights  of  both  parties  to  the  suit.  For  instance, 
he  may  thus  contest  a  claim  for  taxes,  because,  if  valid, 

they  are  superior  to  the  rights  of  both  parties 

He  may  likewise  defend  the  estate  against  all  claims 
which  are  antagonistic  to  the  rights  of  either  party  to 
the  suit,  subject  to  the  limitation  that  he  may  not,  in 
such  defense,  question  any  order  or  decree  of  the  court 
distributing  burdens  or  apportioning  rights  between 
the  parties  to  the  suit,  or  any  order  or  decree  resting 

upon  the  discretion  of  the  court  appointing  him 

Neither  can  he  question  any  subsequent  order  or  decree 
of  the  court  distributing  the  estate  in  his  hands  between 
the  parties  to  the  suit."^ 

§  219.  Priority  of  Claims — Taxes — The  appointment 
of  a  receiver  will  not  be  allowed  to  defeat  the  collection 
of  the  public  revenue.  The  claim  of  the  state  is  para- 
mount to  all  other  claims,  and  therefore  the  court  will 
order  its  receiver  to  pay  such  taxes  as  have  been  legally 
assessed  upon  the  property.^     If  the  receiver  believes 

1  Bosworth  V.  Terminal  E.  Assn.,  174  U.  S.  182,  19  Sup.  Ct.  625,  43 
L.  ed.  941,  per  Brewer,  J. 

2  Id.     As  to  the  receiver's  right  to  appeal,  see  §  178. 

3  First  Nat.  Bank  v.  Ewing,  103  Fed.  168,  43  C.  C.  A.  150;  George 
V.  St.  Louis  Cable  &  W.  E.  Co.,  44  Fed.  117;  In  re  United  States  Car 
Co.,  60  N.  J.  Eq.  514,  43  Atl.  673;  Central  Trust  Co.  v.  New  York 
City  &  N.  R.  Co.,  110  N.  Y.  250,  18  N.  E.  92,  1  L.  E.  A.  260.  See, 
also,  City  of  Los  Angeles  v.  Los  Angeles  City  Water  Co.,  137  Cal. 
699,  70  Pac.  770  (applying  Pol.  Code,  §  3647).  That  the  property  in 
the  receiver's  possession  will  be  protected  from  seizure  for  taxes,  se© 
ante,  §  168. 


409  EECEIVERS;  CLAIMS  AND  ALLOWANCES.       §5   220,  221 

the  legality  of  the  tax  to  be  questionable,  he  may  apply 
to  the  court  for  protection.* 

§  220.  Expenses  of  Receivership. — In  general,  expenses 
of  the  receivership  are  payable  out  of  the  fund  in  the 
receiver's  hands  prior  to  the  payment  of  a  mortgage 
debt.^  The  reasons  for  such  a  rule  are  apparent.  The 
receiver  represents  the  court  and  acts  for  the  interests 
of  all  concerned.  Under  such  circumstances,  it  would 
be  inequitable  to  allow  a  creditor  to  obtain  the  benefit 
of  the  receivership  before  the  expenses  necessarily  in- 
curred are  paid.  It  becomes  important,  then,  to  deter- 
mine what  are  proper  expenses  of  administration. 

§  221.  What  are  Proper  Expenses. — As  a  general  prin- 
ciple, it  may  be  laid  down  that  any  reasonable  expense 
incurred  in  the  proper  care,  protection  and  control  of 
the  property  should  be  allowed  to  the  receiver  as  an  ex- 
pense of  administration.  What  is  proper  in  any  given 
case  must  depend  largely  upon  the  particular  circum- 
stances. A  receiver  is  entitled  to  a  reasonable  com- 
pensation, which,  in  general,  is  allowed  by  the  court 
from  the  fund  in  his  hands.  Such  a  claim  is  clearly  an 
expense  of  administration.®  We  have  seen  that  for 
many  purposes  a  receiver  is  authorized  to  employ  an 
attorney.  Compensation  for  such  services  is  fixed  by 
the  court  and  allowed  as  a  proper  expense."^     Costs  of 

4  Ex  parte  Chamberlain,  55  Fed.  704. 

6  McLane  v.  Placerville  &  S.  V.  R.  Co.,  66  Cal.  606,  6  Pac.  748; 
Central  Trust  Co.  v.  Thunnan,  94  Ga.  735,  20  S.  E.  141;  State  v.  Ac- 
tive Bldg.  &  Loan  Assn.,  102  Mo.  App.  675,  77  S.  W.  171. 

6  See  post,  §§  238-243. 

7  See  ante,  §  206.  See,  also,  Petersburg  Sav.  &  Ins.  Co.  v.  Delhi- 
torre,  70  Fed.  643,  17  C.  C.  A.  310,  30  U.  S.  App.  504;  McLane  v, 
Placerville  &  S.  V.  R,  Co.,  66  Cal.  606,  6  Pac.  748;  Central  Trust  Co. 
V.  Thurman,  94  Ga.  735,  20  S.  E.  141;  State  v.  Active  BMg.  i  Loan 
Assn.,  102  Mo.  App.  675,  77  S.  W.  171;  Graham  v.  Carr,  133  N.  C.  449, 


§  222  EQUITABLE    EEMEDIES.  410 

suits  begun  or  defended  by  the  receiver  under  the  di- 
rection or  approval  of  the  court  are  also  included.® 

§  222.  Expenses  of  Continuing  Business. — When  a  re- 
ceiver is  authorized  to  continue  the  business,  expenses 
incurred  are  chargeable  upon  the  fund  prior  to  pre- 
existing liens.^  As  between  costs  of  the  litigation  it- 
self and  the.  expenses  incurred  in  continuing  the  busi- 
ness, it  would  seem  that  the  former  should  have  the 
priority.^ °  Keceivers'  certificates  are  allowed  a  prefer- 
ence over  mortgage  debts  and  like  claims.^ ^  Any  rea- 
sonable expense  incured  by  authority  of  the  court,  ex- 
press or  implied,  will  be  allowed.  Owners  of  property 
used  by  a  receiver  are  entitled  to  preferred  payment.^  ^ 

45  S.  E.  847.  It  is  only  for  services  connected  with  the  proper  man- 
agement or  control  of  the  property  that  compensation  will  be  al- 
lowed. Thus,  the  unsuccessful  effort  of  an  attorney  to  defend  his 
own  claim  before  the  master  does  not  entitle  him  to  any  additional 
compensation:  In  re  University  Magazine  Co.,  82  N.  Y.  Supp.  74,  83 
App.  Div.  641. 

8  Cumberland  Lumber  Co.  v.  Clinton  Hill  L.  Co.,  64  N.  J.  Eq.  521, 
54  Atl.  452;  McLane  v.  Placerville  &  S.  V.  R.  Co.,  66  Cal.  606,  6  Pac. 
748. 

9  Clark  V.  Central  R.  &  B.  Co.,  66  Fed.  803,  14  C.  C.  A.  112  (coal); 
Diamond  Match  Co.  v.  Taylor,  83  Md.  394,  34  Atl.  1015;  Hoover  v. 
Montclair  &  G.  L.  E.  Co.,  29  N.  J.  Eq.  4  (repairs);  Ellis  v.  Vernon 
lee.  Light  &  Water  Co.,  86  Tex.  109,  23  S.  W.  858.  That  the  ex- 
penses are  a  lien  on  the  corpus  as  well  as  on  the  income,  see  People's 
Nat.  Bank  v.  Virginia  Textile  Co.  (Va.),  51  S.  E.  155,  and  many 
cases  cited;  cf.  infra,  §  225,  as  to  "preferred"  claims  arising  before 
the  receivership.  Where  the  receiver  continues  the  business  without 
authority,  expenses  incurred  therein  are  not  entitled  to  priority: 
United  States  Inv.  Co.  v.  Portland  Hospital,  40  Or.  523,  67  Pac.  194, 
64  Pac.  644,  56  L.  E.  A.  627. 

10  '"'We  consider  the  allowance  as  compensation  to  the  receiver 
and  his  solicitors  as  part  of  the  taxable  costs  in  this  case,  and  as 
such  is  preferred  to  the  receiver's  certificates^  and  entitled  to  prior 
payment":  Petersburg  Sav.  &  Ins.  Co.  v.  Dellatorre,  70  Fed.  643,  17 
C.  C.  A.  310,  30  U.  S.  App.  504. 

11  See  ante,  §§  214-216. 

12  See  Miltenberger  v.  Logansport,  C.  &  S.  W.  E.  Co.,  106  U.  S.  286, 


411  RECEIVERS;   CLAIMS  AND  ALLOWANCES.  §  223 

No  priority  is  allowed,  however,  to  claims  for  money 
loaned  without  authority  of  the  court,  although  it  was 
intended  that  the  funds  so  raised  should  be  used  for 
expenses  of  operation.  ^^ 

§  223.  Same— Liability  for  Torts. — Eeceivers  who  are 
authorized  to  continue  business  and  manage  property 
are  bound  to  the  same  degree  of  care  as  the  owner  would 
have  been  under,  and  are  in  like  manner  liable,  in  their 
official  character,  for  injuries  resulting  from  the  negli- 
gence of  themselves  or  their  agents  and  employees.^ ^ 
This  principle  applies  strongly  to  railway  receivers, 
v,ho  are  held  liable  for  injuries  resulting  from  negli- 
gence in  the  operation  of  the  properties  committed  to 
their  charge.  Claims  of  this  character  are  treated  as 
expenses  of  continuing  the  business,  and  are  allowed 
priority.^ ^  Liability  for  statutory  penalties  depends 
largely  upon  the  wording  of  the  statutes  themselves.    It 

1  Sup.  Ct.  140,  27  L.  ed.  117;  Thomas  v.  Western  Car  Co.,  149  U.  S. 
95,  13  Sup.  Ct.  824,  37  L.  ed.  663.  Where  a  lease  has  not  been  adopted, 
the  owner  can  claim  only  the  actual  value,  not  the  amount  stipulated 
for  in  the  lease:  Lane  v.  Macon  &  A.  Ry.  Co.,  96  Ga.  630,  24  S.  E.  157. 

13  Union  Trust  Co.  v.  Illinois  Midland  Ry.  Co.,  117  U.  S.  434,  6 
Sup.  Ct.  809,  29  L.  ed.  963;  Maxwell  v.  Wilmington  Dental  Mfg.  Co., 
101  Fed.  852. 

14  Fullerton  v,  Fordyce,  121  Mo.  1,  42  Am.  St.  Rep.  516,  25  S.  W. 
587.  As  to  liability,  see  Missouri  Pac.  R.  Co.  v.  Texas  Pac.  R.  Co., 
30  Fed.  169;  Rouse  v.  Hornsby,  14  C.  C.  A.  377,  67  Fed.  219;  Central 
Trust  Co.  V.  Denver  &  Rio  Grande  R.  Co.,  97  Fed.  239,  38  C.  C.  A. 
143;  Malott  v.  Shimer,  153  Ind.  35,  74  Am.  St.  Rep.  278,  54  N.  E. 
101 ;  Lyman  v.  Central  Vt.  R.  Co.,  59  Vt.  167,  10  Atl.  346.  He  is  not 
liable  for  torts  committed  before  the  receivership:  Northern  Pac.  R. 
Co.  V.  Hcflin,  27  C.  C.  A.  460,  83  Fed.  93;  see,  also,  post,  §  237. 

15  Knickerbocker  v.  Benes,  195  111.  434,  63  N.  E.  174;  Bartlett  v. 
Cicero  Light  etc.  Co.,  177  111.  68,  69  Am.  St.  Rep.  206,  52  N.  E.  339, 
42  L.  R.  A.  715;  St.  Louis  S.  W.  Ry.  Co,  v.  Holbrook,  73  Fed.  112,  19 
C.  C.  A.  385,  41  U.  S.  App.  33.  To  the  effect  that  such  a  claim  should 
be  paid  out  of  the  current  receipts,  see  Texas  &  P.  Ry.  Co.  v.  John- 
son, 76  Tex.  421,  18  Am.  St.  Rep,  60,  13  S.  W.  463. 


i  224  EQUITABLE   REMEDIES.  412 

has  been  held  that  a  statute  imposing  a  liability  upon  a 
"proprietor,  owner,  charterer,  or  hirer"  does  not  affect 
the  receiver.^®  On  the  other  hand,  a  statute  inflicting 
penalties  upon  "all  lessees  or  other  persons  owning  or 
operating,"  is  applicable  to  the  receiver.^'  In  some 
cases  liability  has  been  enforced  against  a  corporation 
in  the  hands  of  a  receiver,  by  reason  of  such  statutes.^* 

§  224.  Claims  Arising  Prior  to  Receivership — Statement 
and  Rationale  of  Doctrine. — In  cases  of  railroad  receiver- 
ships, and  perhaps  in  a  few  other  special  instances,  pri- 
ority is  allowed  to  certain  claims  for  operating  expenses 
incurred  within  a  reasonable  time  before  the  appoint- 
ment of  a  receiver.  "The  controlling  principle  appears 
to  be  that  a  railroad,  having  public  duties  to  discharge, 
must  be  kept  a  going  concern  while  in  the  hands  of  the 
court,  and  that  to  that  end  debts  due  its  employees  and 
other  current  debts  incurred  for  its  ordinary  operations, 
which  it  is  not  usually  practicable  to  pay  in  cash,  and 
which  are  therefore  payable  on  short  terms,  should  be 
paid  as  they  would  have  been  paid  if  the  court  had  not 
taken  away  from  the  corporation  the  control  of  the  rail- 
road. A  cessation  of  the  railroad's  operations  by  fail- 
ure to  pay  promptly  the  operatives  or  such  other  debts 

16  Such  a  statute  imposing  liability  for  death  does  not  apply  to 
the  receiver:  Texas  &  P.  R.  Co.  v.  Collins,  84  Tex.  121,  19  S.  W.  365; 
Yoakum  v.  Selph,  83  Tex.  607,  19  S.  W.  145;  Turner  v.  Cross,  83  Tex. 
218,  18  S.  W.  578;  Dillingham  v.  Blake  (Tex.  Civ.  App.),  32  S.  W.  77. 
A  federal  statute  relating  to  the  transportation  of  livestock,  imposing 
a  penalty  upon  "any  company,  owner  or  custodian  of  such  animals," 
does  not  affect  the  receiver:  United  States  v.  Harris,  78  Fed.  290. 
On  the  other  hand,  it  has  been  held  that  a  statute  declaring  that 
"every  railroad  company"  shall  be  liable  for  injuries  to  employees, 
and  abolishing  the  fellow-servant  rule,  binds  the  receiver:  Eouse  v. 
Harry,  5-5  Kan.  589,  40  Pac.  1007;  Hornsby  v.  Eddy,  56  Fed.  4G1, 
5  C.  C.  A.  560. 

17  Brockert  v.  Central  Iowa  R.  Co.,  82  Iowa,  369,  47  N.  W.  1026. 

18  Ohio  &  Miss.  R.  Co.  v.  Russell,  115  111.  52,  3  N.  E.  561. 


413  CLAIMS  ARISING  PRIOR  TO  RECEIVERSHIP.  i  224 

as  railroads  must  necessarily  incur  for  their  ordinary, 
current  operations,  must  be  prevented."^ ^  "Every  rail- 
road mortgagee  in  accepting  his  security  impliedly 
agrees  that  the  current  debts  made  in  the  ordinary 
course  of  business  shall  be  paid  from  the  current  re- 
ceipts before  he  has  any  claim  upon  the  income."^"  It 
is  frequently  stated  that  the  right  to  preference  depends 
upon  a  diversion  to  the  use  of  the  mortgagees  of  funds 
which  should  properly  be  applied  to  the  payment  of 
current  expenses.^^  It  is  not  necessary,  however,  that 
the  funds  be  used  to  pay  the  mortgage  debt,  principal 
or  interest.22  And  it  would  seem  that  the  better  rule 
is  that  no  diversion  whatever  need  be  shown.^^  The 
practical  reasons  for  the  rule  allowing  preferences  are 
as  strong  in  both  cases;  for  it  is  equally  as  important 
to  keep  the  road  a  going  concern  where  there  has,  or 
has  not,  been  such  diversion. 

19  Parlange,  D.  J.,  in  Lackawanna  Iron  &  Coal  Co. v.  Farmers'  Loan 
&  Tr.  Co.,  79  Fed.  202,  24  C.  C.  A.  487  (affirmed,  176  U.  S.  298,  20 
Sup.  Ct.  363,  44  L.  ed.  475). 

20  Waite,  C.  J.,  in  Fosdick  v.  Schall,  99  U.  S.  235,  25  L.  ed.  339, 

21  Quincy,  M.  &  P.  R.  Co.  v.  Humphreys,  145  U.  S.  82,  12  Sup.  Ct. 
787,  36  L.  ed.  632;  Kansas  Loan  &  Tr.  Co.  v.  Electric  Ry.,  L.  &  P. 
Co.,  108  Fed.  702;  Rhode  Island  Locomotive  Works  v.  Continental 
Trust  Co.,  108  Fed.  5,  47  C.  C.  A.  147;  Central  Trust  Co.  v.  Chatta- 
nooga S.  R.  Co.,  69  Fed.  295;  Cutting  v.  Tavares,  O.  &  A.  R.  Co.,  61 
Fed.  150,  9  C.  C.  A.  401;  Finance  Co.  of  Pa.  v.  Charleston,  C.  &  C.  R. 
Co.,  43  Fed.  188;  Hammerly  v.  Mercantile  Trust  etc.  Co.,  123  Ala.  596, 
26  South.  646.  It  is  said  in  some  cases  that  the  burden  of  proving 
such  diversion  is  on  the  party  claiming  the  preference:  Kansas  Loan 
&  Tr.  Co.  V.  Electric  Ry.,  L.  &  P.  Co.,  108  Fed.  702. 

22  Union  Trust  Co.  v.  Souther,  107  U.  S.  591,  2  Sup.  Ct.  295,  27  L. 
ed.  488. 

23  "It  is  immaterial,  in  such  caso^  in  determining  the  right  to  be 
compensated  out  of  the  surplus  earnings  of  the  receivership,  whether 
or  not  during  the  operation  of  the  railroad  by  the  company  there  had 
been  a  diversion  of  income  for  the  benefit  of  the  mortgage  bond- 
holders, either  in  payment  of  inter-est  on  mortgage  bonds  or  expendi- 
tures for  permanent  improvements  upon  the  property":  Virginia  & 
A.  Coal  Co.  V.  Central  R.  &  B.  Co.,  170  U.  S.  355,  18  Sup.  Ct.  657,  42 


§   225  EQUITABLE    REMEDIES.  4U 

§  225.  Growth  of  the  Doctrine. — Although  this  doctrine 
is  of  comparatively  recent  origin,  it  has  had  a  rapid  de- 
velopment, and  many  of  the  decisions  show  a  resulting 
conflict.  It  was  originally  said  that  the  doctrine  rested 
upon  the  implied  consent  of  the  mortgagees;  that  when 
they  applied  for  a  receiver  they  consented  to  do  equity, 
and  accordingly  the  court  would  proceed  to  adjust  the 
claims.-"*  Later,  however,  this  theory  was  abandoned, 
and  the  same  priority  was  allowed  in  a  suit  instituted 
neither  by  the  bondholders  nor  the  trustee,^^  It  has 
been  held  that  no  preference  can  be  allowed  to  claims 
arising  prior  to  the  receivership  unless  the  court,  at 
the  time  of  the  appointment,  makes  an  order  to  that 
effect  ;^^  but  the  better  rule  seems  to  be  that  such  order 
is  not  necessary.-'^  By  the  weight  of  authority,  the  pref- 
erence extends  to  the  income  only.^^     By  some  cases, 

L.  ed.  10G8  (affirming  Clark  v.  Central  E.  R.  &  B.  Co.,  66  Fed.  803, 
14  C.  C.  A.  112J.  See,  also,  Burnham  v.  Bowen,  111  U.  S.  776,  4 
Sup  Ct.  675,  28  L.  ed.  596  ("So  far  as  anything  appears  on  the 
record,  the  failure  of  the  company  to  pay  the  debt  to  Bowen  was 
due  alone  to  the  fact  that  the  expenses  of  running  the  road  and 
preserving  the  security  of  the  bondholders  were  greater  than  the  re- 
ceipts from  the  business.  Under  these  circumstances,  we  think  the 
debt  was  a  charge  in  equity  on  the  continuing  income,  as  well  that 
which  came  into  the  hands  of  the  court  after  the  receiver  was  ap- 
pointed as  that  before");  Cleveland,  C.  &  S.  Ry.  Co.  v.  Knicker- 
bocker Trust  Co.,  86  Fed.  73;  Wood  v.  New  York  &  N.  E.  E.  Co.,  70 
Fed.  741;  Finance  Co.  of  Pa.  v,  Charleston,  C.  &  C.  E.  Co.,  62  Fed. 
205,  10  C.  C.  A.  323,  8  U.  S.  App.  547;  Farmers'  Loan  &  Tr.  Co.  v. 
Kansas  City,  W.  &  N.  W.  E.  Ca,  53  Fed.  182. 

24  Fosdick  V.  Schall,  99  U.  S.  235,  25  L.  ed.  339. 

25  Union  Trust  Co.  v.  Illinois  &  M,  E.  Co.,  117  U.  S.  434,  6  Sup. 
Ct.  809,  29  L.  ed.  963. 

26  Cutting  V.  Tavares,  0.  &  A.  E.  Co.,  61  Fed.  150,  9  C.  C.  A.  401; 
Central  Trust  Co.  v.  Chattanooga  S.  E.  Co.,  69  Fed.  295. 

27  Finance  Co.  of  Pa.  v.  Charleston,  C.  &  C.  E.  Co.,  62  Fed.  205,  10 
C.  C.  A.  323,  8  U.  S.  App.  547;  Wood  v.  New  York  &  N.  K  E.  Co.,  70 
Fed.  741;  Farmers'  Loan  &  Tr.  Co.  v.  Kansas  City,  W.  &  N.  W.  K. 
Co.,  53  Fed.  182. 

28  Gregg  V.  Metropolitan  Trust  Co.,  197  U.  S.  183,  25  Sup,  Ct.  415; 


415  CLAIMS  ARISING  PRIOR  TO  RECEIVERSHIP.         §  226 

however,  it  is  held  that  preferred  debts  may  be  paid  out 
of  the  corpus  when  the  income  is  insufficient.^^ 

§  226.  To  What  Receiverships  the  Doctrine  Applies. — 
Most  of  the  cases  to  which  the  doctrine  has  been  ap- 
plied have  been  cases  of  railroad  receiverships,  and 
the  courts  have  been  very  slow  to  extend  it.  In  the 
absence  of  statute,  it  cannot  apply  to  receiverships  of 
corporations  owing  no  special  obligation  to  the  public.^** 
In  a  few  cases  preferences  have  been  allowed  against 
mortgage   creditors   of   common    carrier   cori)orations, 

International  Trust  Co.  v.  T.  B.  Townsend  B.  &  C.  Co.,  37  C.  C.  A. 
396,  95  Fed.  850;  Street  v.  Maryland  Cent.  R.  Co.,  59  Fed.  25;  Farm- 
era'  &  Merchants'  Nat.  Bank  v.  Waco  Electric  Ry.  &  Lt.  Co.  (Tex. 
Civ.  App.),  36  S.  W.  131.  See,  also,  Mersiek  v.  Hartford  &  W.  H. 
Horse  R.  Co.,  76  Conn.  11,  100  Am.  St.  Rep.  977,  55  Atl.  664  (does 
not  extend  to  corpus  when  there  has  been  no  diversion  of  income). 

29  Miltenberger  v.  Logansport,  C.  &  S.  W.  R.  Co.,  106  U.  S.  286,  1 
Sup.  Ct.  140,  27  L.  ed.  117;  Union  Trust  Co.  v.  Illinois  M.  R.  Co.,  117 
U.  S.  434,  6  Sup.  Ct.  809,  29  L.  ed.  963  (quoting  from  the  former 
case);  Farmers'  Loan  &  Tr.  Co.  v.  Kansas  City,  W.  &  N.  W.  R.  Co., 
53  Fed.  182.  See,  also,  Clark  v.  Central  R.  &  B.  Co.,  66  Fed.  803,  14 
C.  C.  A.  112.  The  very  recent  case  of  Gregg  v.  Metropolitan  Trust 
Co.,  197  U.  S.  183,  25  Sup.  Ct.  415,  apparently  overrules  these  cases, 
at  least  in  part.  It  was  there  held  that  a  claim  for  supplies  cannot 
be  given  preference  over  the  mortgage,  out  of  the  corpus. 

30  Thus,  it  has  been  held  that  there  is  no  right  of  preference  in  a 
receivership  of  a  mining  company:  Merriam  v.  Victory  Min.  Co.,  37 
Or.  321,  56  Pac.  75,  58  Pac.  37,  60  Pac.  997;  Farmers'  Loan  &  Tr.  Co. 
V.  Grape  Creek  Coal  Co.,  50  Fed.  481,  16  L.  R.  A.  603;  nor  in  a  re- 
ceivership of  an  iron  company:  Phillips  v.  Wise  (Tex.  Civ.  App.),  31 
S.  W.  428.  It  has  been  held  that  where  services  are  rendered  a  rail- 
road company  in  its  pursuit  of  a  logging  venture,  which  it  undertakes 
in  addition  to  its  railroad,  no  preference  should  be  allowed:  Security 
Sav.  &  Tr.  Co.  v.  Goble,  N.  &  P.  R.  Co.,  44  Or.  370,  74  Pac.  919,  75 
Pac.  697.  For  a  preference  arising  out  of  statute,  see  Hicks  v.  Con- 
solidation Coal  Co.,  77  Md.  86,  25  Atl.  979;  Farmers'  &  Merchants' 
Nat.  Bank  v.  Waco  Electric  Ry.  &  Lt.  Co.  (Tex.  Civ.  App.),  36  S. 
W.  131.  In  Alabama,  the  doctrine  has  been  extended  independently 
of  statute:  Drennen  v.  Mercantile  Tr.  &  D.  Co.,  115  Ala.  592,  67  Am. 
St.  Rep.  72,  23  South.  164,  39  L.  R.  A.  623  (mining  company);  and 
in  Mississippi:  L'Hote  v.  Boyet  (Miss.),  38  South.  1. 


S  227  EQUITABLE   EEMEDIE3.  416 

such  as  telephone  and  telegraph  companies  ;^^  but  in  at 
least  one  case  the  doctrine  was  held  inapplicable  to 
steamship  companies.^^  In  one  instance  priority  was 
allowed  to  certain  creditors  of  an  irrigation  company.^* 

§  227.  Time  Within  Which  Dehts  must  have  been  Con- 
tracted.— In  order  that  claims  may  be  allowed  a  pref- 
erence under  this  doctrine,  they  must  have  been  con- 
tracted within  a  reasonable  time  before  the  receiver- 
ship.^^ It  is  sometimes  stated  that  six  months  is  the 
limit.^^  This  is  not  borne  out,  however,  by  the  weight 
of  authority.^^     What  is  a  reasonable    time    depends 

31  Keelyn  v.  Carolina  etc.  Tel.  Co.,  90  Fed.  29. 

32  Bound  V.  South  Carolina  Ey.  Co.,  50  Fed.  312.  In  discussing  the 
reasons  for  the  distinction,  Simonton,  D.  J.,  said:  "Eailroads  are  of 
public  concern,  not  simply  because  they  benefit  the  public;  the 
sovereign  power  has  contributed  to  their  construction  in  a  way  to 
which  none  but  the  sovereign  can  contribute,  and  they  are  devoted 

to    a    public    use The    public    use    arises    when    the    sovereign 

power  is  essential  to  the  enterprise,  and  is  exercised  because  of  such 
use.  This  consideration  does  not  exist  in  the  case  of  a  steamship 
company,  or  of  any  common  carrier  by  water,  or  of  any  warehouse 
company.  There  are  no  sovereign,  exclusive  privileges  granted  to 
this  navigation  company." 

33  Atlantic  Trust  Co.  v.  Woodbridge  Canal  Co.,  79  Fed,  39. 

34  Wood  v.  New  York  &  N.  E.  E.  Co.,  70  Fed.  741;  Central  Trust 
Co.  v.  East  Tenn.  V.  &  G,  E.  Co.,  80  Fed.  624,  26  C.  C.  A.  30;  Guar- 
anty Trust  Co.  V.  Galveston  City  E.  Co.,  107  Fed.  311,  46  C.  C.  A. 
305;  Manchester  Locomotive  Works  v.  Truesdale,  44  Minn.  115,  46 
N.  W.  301,  9  L.  E.  A.  140;  Central  Trust  Co.  v.  Utah  Cent.  E.  Co., 
16  Utah,  12,  50  Pac.  813.     See,  also,  cases  cited  in  note  36,  post. 

35  National  Bank  of  Augusta  v.  Carolina,  K.  &  W.  E.  Co.,  63  Fed. 
25  {dictum). 

36  Burnham  v.  Bowen,  111  U.  S.  776,  4  Sup.  Ct.  675,  28  L.  ed.  596 
(claim  for  coal  supplied  eleven  months  before  the  appointment  of  a 
receiver  allowed  a  preference) ;  Northern  Pac.  E.  Co.  v.  Lamont. 
69  Fed.  23,  16  C.  C.  A.  364,  32  U.  S.  App,  480;  Farmers'  Loan  & 
Trust  Co.  v.  Kansas  City,  W.  &  N,  W.  E.  Co.,  53  Fed.  182;  Central 
Trust  Co.  V.  St.  Louis,  A.  &  T.  Ey.  Co.,  41  Fed.  551;  Wood  v.  New- 
York  &  N.  E.  E.  Co.,  70  Fed.  741;  Cleveland  C.  &  S.  Ey.  Co.  v.  Knick- 
erbocker Trust  Co.,  86  Fed.  73;   New  York  Guaranty  etc.  Co.  v.  Ta- 


417         CLAIMS  AKISING  PEIOR  TO  RECEIVERSHIP.  §S  228,  229 

upon  the  circumstances  of  each  particular  case.  The 
supreme  court  of  the  United  States  hajs  given  priority 
to  a  claim  for  materials  furnished  three  years  before 
the  appointment  of  a  receiver.^^ 

§  228.  Labor  Claims — Wherever  the  doctrine  is  ac- 
cepted, claims  of  employees  for  labor  performed  within 
a  reasonable  time  before  the  receivership  are  allowed  a 
preference.2^  All  the  reasons  which  exist  in  favor  of 
allowance  in  any  other  case  exist  here.  Without  em- 
ployees the  road  could  not  run  for  a  moment. 

§  229.  Extent  of  this  Class — It  is  impossible  from  the 
present  state  of  the  authorities  to  define  exactly  who 
are  included  within  this  class.  It  is  sometimes  stated 
that  officers  and  employees  of  every  grade  are  in- 
cluded ;^^  but  this  is  not  warranted  by  the  authorities. 
The  ordinary  clerks  and  employees  are  clearly  entitled 
to  the  preference.  The  question  is  more  difficult  when 
applied  to  the  officials  of  the  company.  It  has  been 
held,  in  accord  with  principle,  that  a  president  of  a  rail- 
road corporation  is  not  entitled  to  any  priority  for  his 
salary  claim.  "If  persons  who  give  labor  and  materials 
were  required  in  every  instance  to  make  careful  exam- 
ination into  the  condition  of  the  company,  so  as  to  as- 

coma  R.  &  M.  Co.,  83  Fed.  365,  27  C.  C.  A.  550;  Central  Trust  Co.  v. 
Utah  Cent.  R.  Co.,  16  Utah,  12,  50  Pac.  813. 

37  Hale  V.  Frost,  99  U.  S.  389,  25  L.  ed.  419. 

38  Fosdick  V.  Schall,  99  U.  S.  235,  25  L.  ed.  339;  Miltenberger  ▼. 
Logansport,  C.  &  S.  W.  R.  Co.,  106  U.  S.  286,  1  Sup.  Ct.  140,  27  L.  ed. 
117;  Wood  V.  New  York  &  N.  E.  R.  Co.,  70  Fed.  741;  Finance  Co.  of 
Pa.  V.  Charleston,  C.  &  C.  R.  Co.,  62  Fed.  205,  10  C.  C.  A.  323,  8 
U.  S.  App.  547;  Douglass  v.  Cline,  12  Bush,  608;  Litzenberg  v.  Jarvia- 
Conklin  Trust  Co.,  8  Utah,  15,  28  Pac.  871;  Central  Trust  Co.  v. 
Utah  Cent.  R.  Co.,  16  Utah,  12,  50  Pac.  813. 

39  Farmers'  Loan  &  Trust  Co.  v,  Vicksburg  &  M.  R.  Co.,  33  Fed 
778. 

Equitable  Remedies,  Vol.  1—27 


§  229  EQUITABLE    REMEDIES.  418 

certain  its  solvent  capacity  for  paying  debts,  all  of  its 
operations  might  be  brought  to  a  standstill.  For  this 
reason,  persons  dealing  with  a  company  are  encouraged 
to  do  so,  with  the  knowledge  that  the  court  will  see 
that  all  such  supplies  of  labor  and  material  given,  and 
not  paid  for  within  a  reasonable  time  before  the  appoint- 
ment   of    a    receiver,    will    be    provided    for    by    the 

conrt No  case  can  yet  be  found  which  extentls 

the  equity  to  the  president  of  the  company.  He  knows 
exactly  its  condition.  He  has  full  notice  of  the  liens 
existing.  He  is  not  bound  to  furnish  his  services  a  day 
after  his  remuneration  seems  uncertain.  He  cannot  be 
included  among  that  class  of  employees  who  have  no 
means  of  ascertaining  whether  a  short  credit  to  the  com- 
pany is  safe  or  not."^"  An  attorney  whose  services  re- 
sult in  a  recovery  which  inures  to  the  benefit  of  the 
bondholders  is  entitled  to  preference  for  his  fee.  The 
party  who  takes  the  benefit  of  such  a  service  ought  to 
pay  for  it.*^  Likewise,  it  has  been  held  that  where  the 
court  orders  the  receiver  to  pay  wages  due,  a  claim  of 
an  attorney  regularly  employed  is  entitled  to  prefer- 
ence.^2  But  "claims  for  legal  services  rendered  a  rail- 
road company  in  the  ordinary  course  of  its  business  un- 
der special  employment,  which  do  not  directly  con- 
tribute in  some  way  to  the  advantage  of  mortgagees, 
do  not  stand  upon  a  plane  with  the  labor  of  operatives, 
or  the  claims  of  those  who  furnish  materials  or  supplies 
to  maintain  it  as  a  going  concern."^^ 

40  National  Bank  of  Augusta  v.  Carolina,  K.  &  W.  R.  Co.,  63  Fed, 
25. 

41  Louisville,  E.  &  St.  L.  K.  Co.  v.  Wilson,  138  U.  S.  501,  11  Sup. 
Ct.  405,  34  L.  ed.  1023. 

42  Finance  Co.  of  Pa.  v.  Charleston,  C.  &  C.  E.  Co.,  52  Fed.  526. 

43  Gregg  V.  Mercantile  Trust  Co.,  109  Fed,  220,  48  C.  C,  A,  318; 
Louisville,  E.  &  St.  L.  E.  Co.  v.  Wilson,  138  U.  S.  501,  11  Sup.  Ct. 
405,  34  L.  ed.  1023. 


419  CLAIMS  ARISING  PRIOR  TO  RECEIVERSHIP.         §   230 

§  230.  Claims  for  Supplies. — Another  class  of  claims 
entitled  to  preference  includes  those  arising  from  the 
sale  of  supplies  necessary  for  operating  purposes."** 
Such  claims  clearly  come  within  the  reason  of  the  rule. 
No  railroad  can  run  without  supplies.  Thus,  coal  be- 
ing essential  to  the  operation  of  a  railroad,  claims  for 
coal  are  allowed  a  preference.*^  Some  courts  are  dis- 
posed to  narrow  the  class  so  as  to  include  only  claims 
for  supplies  which  are  actually  necessary  to  keep  the 
road  in  operation. *•'     Accordingly,  claims  for  advertis- 

44  Union  Trust  Co.  v.  Souther,  107  U.  S.  591,  2  Sup.  Ct.  295,  27  L. 
€d.  488;  Kneeland  v.  Bass  Foundry  &  Mach.  Works,  140  U.  S.  592, 

II  Sup.  Ct.  857,  35  L.  ed.  543;  Virginia  &  A.  Coal  Co.  v.  Central  R. 
&  B.  Co.,  170  U.  S.  355,  18  Sup.  Ct.  657,  42  L.  ed.  1068;  Wood  v.  New 
York  &  N.  E.  R.  Co.,  70  Fed.  741;  Southern  Ry.  Co.  v.  Chapman  Jack 
Co.,  54  C.  C.  A.  598,  117  Fed.  424;  Grand  Trunk  Ry.  Co.  v.  Central 
Vt.  R.  Co.,  88  Fed.  620;  Finance  Co.  of  Pa.  v.  Charleston,  C.  &  C.  R. 
Co.,  52  Fed,  524.  A  claim  for  a  gear  wheel  and  pinion,  necessary 
parts  of  a  cable  railway,  was  allowed  a  preference  in  Central  Trust 
Co.  V.  Clark,  81  Fed.  269,  26  C.  C.  A.  397.  See,  also,  New  York 
Guaranty  etc.  Co.  v.  Tacoma  R.  &  M.  Co.,  83  Fed.  365,  27  C.  C.  A. 
550.  For  a  statement  as  to  when  claims  for  supplies  should  be  al- 
lowed a  preference,  see  Southern  Ry.  Co.  v.  Ensign  Mfg.  Co.  54  C. 
C.  A.  591,  117  Fed.  417. 

45  "It  was  thus  settled  that,  where  coal  is  purchased  by  a  rail- 
road company  for  use  in  operating  lines  of  railway  owned  and  con- 
trolled by  it,  in  order  that  they  may  be  continued  as  a  going  con- 
cern, and  where  it  was  the  expectation  of  the  parties  that  the  coal 
was  to  be  paid  for  out  of  the  current  earnings,  the  indebtedness  as 
between  the  party  furnishing  the  materials  and  supplies  and  the 
holders  of  bonds  secured  by  a  mortgage  upon  the  property,  is  a 
charge  in  equity  on  the  continuing  income,  as  well  that  which  may 
come  into  the  hands  of  a  court  after  a  receiver  has  been  appointed 
as  that  before":  Virginia  &  A.  Coal  Co.  v.  Central  R.  &  B.  Co.,  170 
U.  S.  355,  18  Sup.  Ct.  657,  42  L.  ed.  1068  (affirming  Clark  v. 'cen- 
tral R.  R.  &  B.  Co.,  66  Fed.  803,  14  C.  C.  A.  112);  Burnham  v.  Bowen, 

III  U.  S.  776,  4  Sup.  Ct.  675,  28  L.  ed.  596;  Clark  v.  Central  R.  &  B. 
Co.,  66  Fed.  803,  14  C.  C.  A.  112. 

46  In  McCornack  v.  Salem  Consol.  St.  Ry.  Co.  34  Or.  543,  56  Pa«. 
518,  a  claim  for  a  heater  furnished  to  a  street  railway  company  was 
refused  a  preference  although  it  resulted  in  a  saving  of  fuel,  on  tho 
ground  that  it  was  not  necessary  in  order  to  keep  the  company  a 
going  concern. 


S§  231,  232  EQUITABLE  KEMEDIES.  420 

ing  matter  furnished  have  been  refused  priority.^^ 
Likewise,  a  claim  for  locomotives  was  denied  priority 
when  there  was  no  showing  that  additional  engines 
were  necessary.^^ 

§  231.  No  Priority  When  Credit  Given. — Priority  is  de- 
nied to  claims  for  supplies  sold  on  credit.'*^  In  such  a 
case  it  must  be  inferred  that  interest  is  to  be  paid  on 
the  mortgage  indebtedness  during  the  running  of  the 
credit.  "The  claim  is  quite  different  from  those  or- 
dinary and  necessary  current  expenses  of  operating  a 
railroad  contracted  a  short  time  before  the  receivership, 
and  which,  by  the  sudden  action  of  the  court  in  appoint- 
ing a  receiver,  are  left  unpaid."^*^ 

§  232.  Claims  for  Repairs — Construction — Reconstmction. 
In  the  operation  of  a  railroad,  repairs  are  continually 
necessary.  Hence  claims  for  labor  performed  and  sup- 
plies furnished  for  ordinary  and  necessary  repairs  are 
allowed  a  preference.^^  It  is  held,  however,  that  claims 
for  the  construction  of  the  road  are  not  such  current 

47  Central  Trust  Co.  v.  East  Tenn.,  V.  &  G.  R.  Co.,  26  C.  C.  A.  30, 
80  Fed.  624. 

48  Gregg  V.  Mercantile  Trust  Co.,  109  Fed.  220,  48  C.  C.  A.  318. 
See,  also,  Rhode  Island  Locomotive  Works  v.  Continental  Trust  Co., 
108  Fed.  5,  47  C.  C.  A.  147. 

49  Bound  V.  South  Carolina  Ry.  Co.,  7  C.  C.  A.  322,  58  Fed.  473; 
Rhode  Island  Locomotive  Works  v.  Continental  Trust  Co.,  108  Fed. 
5,  47  C.  C.  A.  147.  This  principle  prevents  priority  when  there  is  » 
conditional  sale  of  rolling  stock,  title  being  retained  until  payment: 
Huidekeper  v.  Locomotive  Works,  99  U.  S.  258,  25  L.  ed.  344;  Fidel- 
ity Ins.,  Trust  &  S.  D.  Co.  v.  Shenandoah  Valley  R.  Co.,  86  Va.  1,  19 
Am.  St,  Rep.  858,  9  S.  E.  759.  See,  also,  Ruhlender  v.  Chesapeake,  O. 
&  S.  W.  R.  Co.,  33  C.  C.  A.  299,  91  Fed.  5. 

60  Bound  V.  South  Carolina  Ry.  Co.,  7  C.  C.  A.  322,  58  Fed.  473. 

51  Southern  Ry.  Co.  v.  Carnegie  Steel  Co.,  176  U.  S.  257,  20  Sup. 
Ct.  J47,  44  L.  ed.  458  (affirming  76  Fed.  492,  22  C.  C.  A.  289) ;  Gregg 
V.  Mercantile  Trust  Co.,  109  Fed.  220,  48  C  C,  A.  318;  Cleveland,  C.  & 
S.  Ry.  Co.  V.  Knickerbocker  Trust  Co.,  86  Fed.  73. 


421  CLAIMS  ARISING  PRIOR  TO  RECEIVERSHIP.         S  233 

debts  as  are  entitled  to  this  preference.  An  "original 
construction"  is  that  which  is  necessary  to  be  done  be- 
fore the  road  can  be  opened  or  used.'^^  Such  work  is 
clearly  not  part  of  the  ordinary  course  of  business. 
Claims  for  reconstruction  are  also  denied  a  preference. 
It  is  difficult  to  draw  the  line  between  repairs  and  re- 
construction. Each  case  must  depend  upon  its  own 
facts.     The  extent  of  the  work  is  the  only  criterion.'^' 

§  233.  Miscellaneous  Claims — Preference  has  been  al- 
lowed to  claims  for  providing,  furnishing  and  maintain- 
ing waiting-rooms  for  passengers,  office  room  for  ticket 
agents,  and  a  convenient  place  for  employees  to  lodge 
at  reduced  rates.^*     A  like  priority  has  been  given  to 

52  Wood  V.  Deposit  Co.,  128  U.  S.  421,  9  Sup.  Ct.  131,  32  L.  ed. 
472;  Cleveland,  C.  &  S.  Ry.  Co.  v.  Knickerbocker  Trust  Co.,  86  Fed. 
73;  First  Nat.  Bank  v.  Ewing,  103  Fed.  168,  43  C.  C.  A.  150;  Amer- 
ican L.  &  T.  Co.  V.  East  &  West  R.  Co.,  46  Fed.  101;  Niles  Tool 
Works  Co.  V.  Louisville,  N.  A.  &  C.  Ry.  Co.,  112  Fed.  561,  50  C.  C  A. 
390.  See,  however,  Mcllhenny  v.  Binz,  80  Tex.  1,  26  Am,  St.  Rep. 
705,  13  S.  W.  655,  where  the  court  said:  "Ordinarily,  when  mortgages 
are  issued  upon  completed  roads,  it  is  not  contemplated  that  its  in- 
come is  to  be  applied  to  the  construction  of  new  road.  In  such  cases, 
debts  incurred  for  such  new  construction  ought  to  have  no  claim 
against  the  bondholders  either  as  to  the  corpus  or  the  increase  of 
the  property.  But  when  mortgages  are  executed  upon  an  unfinished 
road,  and  they  show  upon  their  face  that  it  was  contemplated  that 
the  work  of  construction  should  be  prosecuted  to  completion,  and 
when  the  mortgages  attach  to  the  new  road  as  fast  as  it  is  finished, 
we  are  of  opinion  that  the  new  road  should  be  considered  a  'useful 
improvement,'  and  that,  if  the  road  be  put  into  the  hands  of  a  re- 
ceiver before  the  work  and  materials  are  paid  for,  the  holders  of  the 
claims  for  such  work  and  material  should  be  paid  from  the  net  in- 
come of  the*  road  while  under  the  control  of  the  court,  if  there  b« 
any." 

53  Lackawanna  Iron  &  Coal  Co.  v.  Farmers'  L.  &  T.  Co.,  176  U.  S. 
298,  20  Sup.  Ct.  363,  44  L.  ed.  475,  affirming  79  Fed.  202,  24  C.  C.  A. 
487. 

54  Northern  Pac.  R.  Co.  v.  Lamont,  69  Fed.  23,  16  C.  C.  A.  364,  32 
U.  S.  App.  480.  In  this  case,  Caldwell,  Cir.  J.,  tersely  argued:  "To 
defeat  the  preferential  character  of  this  claim,  the  court  would  have 


§§1^34,  235  EQUITABLE  REMEDIES.  422 

claims  of  other  railroads  for  freight  and  ticket  bal- 
ances.'^  A  claim  for  the  use  of  terminal  property  has 
been  held  entitled  to  preference. 


56 


§  234.  Money  Loaned. — No  preference  is  allowed 
claims  for  money  loaned.  This  rule  is  adhered  to  al- 
though the  money  may  have  been  used  to  pay  current 
running  expenses,  and  may  have  been  loaned  expressly 
for  that  purpose.  The  fact  that  the  money  is  loaned 
to  enable  the  company  to  pay  interest  on  its  mortgage 
bonds  is  likewise  immaterial.^^ 

§  235.  Rental  of  Leased  Lines. — No  priority  is  allowed 
for  claims  for  rental  under  a  railroad  lease  accruing 
before  the  appointment  of  a  receiver.^^     A  distinction 

to  be  satisfied  that  waiting-rooms  for  passengers  and  an  office  for  the 
ticket  agents  are  not  essential  or  necessary,  at  a  town  of  several 
thousand  population,  on  the  Northern  Pacific  Eailroad.  We  are 
asked,  in  effect,  to  hold  that  passengers  on  that  road,  while  waiting 
to  take  passage  on  its  trains,  must  endure  the  rigors  of  a  North  Da- 
kota climate  without  shelter,  and  that  its  ticket  agent  must  be  con- 
tent with  an  office  on  the  public  commons,  and  carry  his  tickets  in 
his  pocket  or  his  hat." 

55  Miltenberger  v.  Logansport,  C.  &  S.  W.  R.  Co.,  106  U.  S.  286, 
1  Sup.  Ct.  140,  27  L.  ed.  117;  Finance  Co.  of  Pa.  v.  Charleston,  C.  & 
C.  E.  Co.,  62  Fed.  205,  10  C.  C.  A.  323,  8  U.  S.  App.  547;  Gregg  v 
Mercantile  Trust  Co.,  109  Fed.  220,  48  C.  C.  A.  318;  Monsarrat  v. 
Mercantile  Trust  Co.,  109  Fed.  230,  48  C.  C.  A.  328. 

56  Manhattan  Trust  Co.  v.  Sioux  City  &  N.  R.  Co.,  102  Fed.  710. 
But  see,  contra,  Gregg  v.  Mercantile  Trust  Co.,  109  Fed.  220,  48  C. 
C.  A.  318. 

57  Morgan's  L.  &  T.  E.  &  S.  S.  Co.  v.  Texas  Cent.  Ey.  Co.,  137  U. 
S.  171,  11  Sup.  Ct.  61,  34  L.  ed.  625;  Southern  Dev.  Co.  v.  Farmers' 
L.  &  T.  Co.,  79  Fed.  212,  24  C.  C.  A.  497;  Morgan's  La.  &  T.  R.  &  S. 
S.  Co.  V.  Farmers'  L.  &  T.  Co.,  79  Fed,  210,  24  C.  C.  A.  495;  Lacka- 
wanna Iron  &  Coal  Co.  v.  Farmers'  L.  &  T.  Co.,  79  Fed.  202,  24  C. 
C.  A.  487;  Illinois  Trust  Co.  v.  Dowd,  105  Fed.  123,  44  C.  C.  A.  389, 
52  L.  E.  A.  481;  Contracting  &  Building  Co.  v.  Continental  Trust  Co., 
108  Fed.  1,  47  C.  C.  A.  143;  Illinois  Trust  etc.  Bank  v.  Ottumwa  El. 
Ey.,  89  Fed.  235. 

58  New  York,  P.  &  O.  E.  Co.  v.  New  York,  L.  E.  &  W.  E.  Co.,  58 
Fed.  268. 


423       CX.AIMS  ARISING  PRIOR  TO  RECEIVERSHIP.     SS  236,  237 

has  been  made,  however,  between  claims  for  rent  and 
claims  arising  out  of  an  agreement  to  divide  the  earn- 
ings. In  the  latter  case,  it  has  been  held  that  an  equity 
arises  which  entitles  the  claimant  to  a  preference.^^ 

§  236.  Car  Rentals — Track  Rentals. — A  claim  for  car 
rental  that  has  accrued  prior  to  the  receivership  is  not 
entitled  to  preference.  "The  case  of  a  corporation  for 
the  manufacture  and  sale  of  cars,  dealing  with  a  rail- 
road company,  whose  road  is  subject  to  a  mortgage 
securing  outstanding  bonds,  is  very  different  from  that 
of  workmen  and  employees,  or  of  those  who  furnish, 
from  day  to  day,  supplies  necessary  for  the  maintenance 
of  the  railroad.  Such  a  company  must  be  regarded  as 
contracting  upon  the  responsibility  of  the  railroad  com- 
pany, and  not  in  reliance  upon  the  interposition  of  a 
court  of  equity."®*  Priority  is  also  denied  to  claims 
for  track  rentals.®^ 

§  237.  Personal  Injuries — In  accord  with  the  general 
principle,  it  is  well  settled  that  claims  for  personal  in- 

69  Terre  Haute  &  I.  R.  Co.  v.  Cox,  102  Fed,  825,  42  C.  C.  A.  654. 
The  court  said:  "Two  railroad  companies,  each  possessing,  and  sepa- 
rately operating,  a  railroad,  found  it  advisable  to  unify  the  operation 
of  their  roads.  They  chose,  in  the  execution  of  their  project,  that 
one  company  should  operate,  as  one  line,  both  roads.  The  undertak- 
ing was,  in  a  certain  sense,  a  joint  one;  each  contributed  a  part  of 
the  moans  whereby  it  should  be  carried  out.  It  certainly  was  within 
legal  competency,  either  that  the  operating  company  should  pay  a 
strict  rental  for  the  use  of  the  other's  property,  or  that  the  earnings 
of  the  road,  gross  or  net,  as  an  entirety — the  fruit  of  the  joint  en- 
terprise— should  be  divided  according  to  the  agreement  of  the  par- 
ties." 

60  Thomas  v.  Western  Car  Co.,  149  U.  S.  95,  13  Sup.  Ct.  824,  37 
L.  ed,  663;  Grand  Trunk  Ry.  Co.  v.  Central  Vt.  R.  Co.,  90  Fed.  163; 
Pullman 's  Palace-Car  Co.  v.  American  Loan  &  Trust  Co.,  84  Fed.  18, 
28  C.  C.  A.  263  (mileage  due  under  contract  for  use  of  Pullman  cars). 

61  Louisville  &  N.  E.  Co.  v.  Central  Trust  Co.,  87  Fed.  500,  31  C. 
C.  A.  89. 


i  237  EQUITABLE  EEMEDIES.  424 

juries  arising  out  of  negligence  prior  to  the  appoint- 
ment of  a  receiver  are  not  entitled  to  any  preference.^^ 

62  The  reasons  are  well  stated  in  Farmers'  Loan  &  Trust  Co.  ▼. 
Northern  Pac.  E.  Co.,  74  Fed.  431.  "But  he  who  has  a  claim  of 
damages  for  a  negligent  act  of  the  railroad  company  prior  to  the 
receivership  has  no  recognized  equitable  ground  for  demanding  a 
preferred  payment.  He  has  done  no  act  by  which  either  the  railroad 
company  or  the  mortgagee  has  profited,  nor  has  he  surrendered  prop- 
erty which  has  in  any  way  inured  to  their  benefit.  Accidents,  it  is 
true,  are  liable  to  occur,  and  do  occur  in  the  operation  of  all  railroads, 
and  it  is  impossible  to  wholly  avoid  them;  but  it  cannot  be  said  that 
they   are   necessary  to  the   road's   existence   in   the  same  sense  that 

supplies   are   necessary He   who   lends   his   money   on   railroad 

security  undoubtedly  docs  so  with  the  contingency  that  the  com- 
pany may  require  supplies  and  equipment,  and  that,  if  it  become 
necessary  for  the  protection  of  the  security  that  a  court  of  chancery 
shall  assume  control  over  the  mortgaged  property,  such  claims  may 
intervene  between  him  and  the  paj'ment  of  his  lien.  He  incurs  also 
the  risk  of  the  negligent  conduct  of  the  railroad  company,  so  far  as 
it  may  directly  afEect  the  condition  or  value  of  the  property.  But  it 
cannot  be  said,  and  no  court  has  held,  that  he  assumes  the  risk  of 
the  negligence  of  the  railroad  company  whereby  injury  results  to 
third  persons,  and  that  he,  in  effect,  becomes  responsible  for  the  torts 
which  such  railroad  company  may  commit  against  others."  In  sup- 
port of  the  text,  see  Farmers'  Loan  &  Trust  Co.  v.  Northern  Pac. 
Ey.  Co.,  79  Fed.  227,  24  C.  C.  A.  511;  St.  Louis  Trust  Co.  v.  Eiley,  70 
Fed.  32,  16  C.  C.  A.  610,  36  U.  S.  App.  100,  30  L.  E.  A.  456;  Front 
St.  Cable  Ey.  Co.  v.  Drake,  84  Fed.  257;  Farmers'  Loan  and  Trust 
Co.  V.  Nestille,  25  C.  C.  A.  194,  79  Fed.  748;  Veatch  v.  American 
Loan  &  Trust  Co.,  84  Fed.  274,  28  C.  C.  A.  3S4;  Central  Trust  Co,  v. 
East  Tennessee,  V.  &  G.  E.  Co.,  30  Fed.  895;  Central  Trust  Co.  v. 
Chattanooga  etc.  E.  E.  Co.,  89  Fed.  388;  Farmers'  Loan  &  Trust  Co. 
V.  Green  Bay  etc.  E.  Co.,  45  Fed.  664;  Frt.rmers'  Loan  &  Trust  Co. 
v.  Detroit  etc.  E.  E.  Co.,  71  Fed.  29;  Davenport  v.  Alabama  &  C.  E. 
Co.,  2  "Woods,  519,  Fed.  Cas.  No.  3538.  A  claim  for  damages  for  death 
caused  by  negligence  is  not  entitled  to  preference:  Veatch  v,  Amer- 
ican L.  &  T.  Co.,  79  Fed.  471,  25  C.  C  A.  39;  Farmers'  Loan  &  Trust 
Co.  v.  Green  Bay  etc.  E.  Co.,  45  Fed.  604. 

There  is  a  vigorous  protest  against  this  line  of  decisions  in  Green 
V.  Coast  Line  E.  Co.,  97  Ga.  15,  54  Am.  St.  Ecp.  379,  24  S.  E.  814,  33  L. 
E.  A.  806.  The  court  says:  "Such  corporations  incur  certain  duties 
and  obligations  to  the  public,  which  adhere  firmly  to  the  franchises 
granted,  and  cannot  be  separated  from  them  without  legislative  con- 
sent.    These  duties  and  obligations,  equally  with  the  franchises  them- 


425  COMPENSATION    OF    RECEIVER.  §§  238,  239 

§  238.  Compensation  of  Receiver — In  General A  re- 
ceiver being  an  ofiQcer  of  the  court,  provision  will  be 
made  for  his  compensation.  In  cases  where  the  court 
has  jurisdiction  to  make  the  appointment,  the  amount 
will  be  fixed  by  the  court  and  ordered  paid  out  of  the 
fund  in  the  receiver's  hands.  In  the  absence  of  statute, 
no  definite  rule  governing  the  allowance  can  be  laid 
down.  Much  is  left  to  the  sound  discretion  of  the 
court,  and  what  is  reasonable  must  be  determined  from 
a  consideration  of  the  particular  circumstances  of  each 
€ase.  In  some  states  the  matter  is  largely  controlled 
by  statute,  but  even  then,  provision  is  frequently  made 
for  additional  allowances  to  be  determined  by  the  court 
in  the  event  of  special  or  extraordinary  services.^^  In 
England,  the  strict  rule  as  to  trustees  is  not  applied  to 
receivers.^* 

§  239.  Discretion  as  to  Amount. — In  the  absence  of  any 
statutory  regulation,  the  amount  of  the  compensation 

selves,  are  matters  of  fundamental  contract  between  the  corporation 
and  the  sovereignty  creating  it, — a  contract  which  is  paramount  to 
all  subsequent  contracts  which  the  corporation  is  capable  of  entering 
into,  with  any  person  or  for  any  purpose.  By  necessary  implication, 
these  latter  contracts  are  always  qualified  and  held  in  check  by  the 
former,  and  in  every  conflict  they  must  be  subordinated  to  it.  The 
corporation  can  grant  to  others  no  immunity  as  to  its  franchises  which 
it  could  not  claim  for  itself;  nor  can  it  in  behalf  of  its  creditors,  or 
any  of  them,  free  the  franchises  from  .being  answerable  out  of  the 
revenue  produced  by  their  exercise,  for  torts  committed  in  the  use 
of  them,  whether  such  torts  be  committed  by  the  corporation  itself 
or  by  others  using  the  franchises  with  its  consent  or  by  its  permis- 
flion." 

63  For  applications  of  such  a  statute,  see  Spears  v.  Thomas.  24 
Ky.  Law  Rep.  1154,  70  S.  W.  1060;  Fidelity  Nat.  Bank's  Receiver  v. 
Youtsey,  26  Ky.  Law  Rep.  340,  81  S.  W.  263;  United  States  Trust 
€o.  v.  New  York,  W.  S.  &  B.  Ry.  Co.,  101  N.  Y.  478,  5  N.  E.  316;  Cam- 
eron V.  Groveland  Improvement  Co.,  72  Am.  St.  Rep.  77,  note. 

64  Harris  v.  Sleep,  [1397]  2  Ch.  81. 


f  240  EQUITABLE  REMEDIES.  42& 

is  left  to  the  discretion  of  the  court®'  A  receiver  is  en- 
titled to  reasonable  pay  for  his  services,  and  such  an 
amount  the  court  will  determine  and  allow.  Upon  ap- 
peal, "the  action  of  the  court  below  is  treated  as  pre- 
sumptively correct,  'since  it  has  far  better  means  of 
knowing  what  is  just  and  reasonable  than  an  appellate 
court  can  have.'  "^®  This  discretion  is  not  absolute,  how- 
ever, and  if  it  can  be  shown  that  the  amount  allowed 
is  unreasonable  under  all  the  circumstances,  the  appel- 
late court  will  interfere  in  the  interests  of  justice.®'^ 
Where  the  receiver  is  allowed  a  monthly  stipend,  the 
lower  court  retains  the  power  to  change  it,  and  may,, 
in  its  discretion,  reduce  the  amount.®* 

§  240.  Matters  Considered  in  Determining  Amount. — By 
what  means  or  in  what  manner  the  court  will  arrive  at 
its  determination  of  what  is  reasonable,  no  positive  rule 
can  be  stated.  The  court  is  allowed  the  largest  liberty 
of  inquiry  and  ascertainment.  It  may,  "in  connection 
with  the  evidence  before  it,  take  into  consideration  its 
personal  knowledge  of  the  general  nature  and  char- 
acter and  value  of  the  services  alleged  to  have  been  ren- 

«5  Stuart  V.  Boulware,  133  U.  S.  78,  10  Sup.  Ct.  244,  33  L.  ed.  568;. 
Cake  V.  Mohun,  164  U,  S.  311,  17  Sup.  Ct.  100,  41  L.  ed.  447  (amount 
sustained  on  appeal,  although  if  question  had  been  an  original  one, 
a  lower  amount  would  have  been  fixed);  Wilkinson  v.  Washington 
Trust  Co.,  72  C.  C.  A.  140,  102  Fed.  28;  Culver  v.  H.  R.  Allen,  Sr. 
Med.  &  S.  Assn.,  206  111.  40,  69  N,  E.  53;  Heffron  v.  Rice,  149  111.  216,. 
41  Am.  St.  Rep.  271,  36  N.  E.  562;  Litchenstein  v.  Dial,  68  Miss.  54, 
8  South.  272;  First  Nat.  Bank  v.  Oregon  Paper  Co.,  42  Or,  398,  71 
Pac.  144,  971. 

86  Stuart  V.  Boulware,  133  U.  S.  78,  10  Sup.  Ct.  244,  33  L.  ed.  568,. 
quoting  from  Trustees  v.  Greenough,  105  U.  S.  527,  537,  26  L.  ed.  1157. 
See,  also,  Graham  v.  Carr,  133  N.  C.  449,  45  S.  E.  847. 

67  In  Spears  v.  Thomas,  24  Ky.  Law  Rep.  1154,  70  S.  W.  1060,  com- 
pensation was  reduced  from  $15,000  to  $10,000.  See,  also,  Joralmon 
V.  McPhee,  31  Colo,  40,  76  Pac.  922;  Forrester  v.  Boston  &  M.  ConsoL 
C.  &  S.  M.  Co.,  29  Mont.  397,  76  Pac.  211. 

88  In  re  Angoll,  131  Mich,  345,  91  N.  W.  611. 


427  COMPENSATION  OF  RECEIVER.  S  241 

dered."^^  But  it  is  only  the  value  of  the  services  a» 
rendered  in  the  particular  class  of  business  that  will 
be  considered,  not  the  value  of  the  receiver's  services 
in  some  other  line  of  business.'^*^  "In  receiverships  of 
that  character  in  which  the  officer  is  at  once  receiver 
and  manager  of  a  business,  a  gross  sum  may  be  allowed 

as  specific  compensation  for  services In  other 

cases,  in  which  the  receiver's  duties  are  confined  to  the 
receipt  and  disbursement  of  money,  the  court  might 
wisely  refer  to  the  rule  and  rate  of  a  given  percentage 
in  analogous  cases,  when  such  percentage  is  regulated 
by  law,  and  might  properly  adopt  such  rule  and  rate^ 
if,  in  its  discretion,  the  same  would  amount  to  reason- 
able compensation."'^^  Where  the  nature  of  the  services 
is  such  that  the  greater  part  of  the  work  will  necessarily 
have  to  be  done  by  the  receiver's  attorney,  the  court  may 
consider  such  fact  in  determining  the  amount  to 
award.^^ 

§  241.  Effect  of  Revocation  or  Reversal  of  Order  Appoint- 
ing Receiver — "If  the  order  appointing  a  receiver  is  re- 
voked" for  want  of  jurisdiction,  or  for  such  cause  is  re- 

69  Culver  V.  H.  R.  Allen,  Sr.  Med.  &  S.  Assn.,  206  111.  40,  69  N.  B. 
53.  For  a  good  statement  of  matters  which  may  be  considered,  see 
Ilickey  v.  Parrot  Silver  &  Copper  Co.  (Mont.),  79  Pac.  69S. 

TO  "It  is  very  possible  that  his  time  was  worth  the  munificent  sum 
he  demands  for  it,  but  the  court  must  consider,  not  the  value  of  his 
services  in  larger  and  more  important  affairs,  but  their  value  to  the 
modest  business  of  which  he  consented  to  take  charge":  Stearns  Paint 
Mfg.  Co.  V.  Comstock,  121  Iowa,  430,  96  N.  W.  869. 

Ti  Lichtenstein  v.  Dial,  68  Miss.  54,  8  South.  272.  See  First  Nat. 
Bank  v.  Oregon  Paper  Co.,  42  Or.  398,  71  Pac.  144,  971;  Tome  v.  King, 
64  Md.  166,  21  Atl.  279.  See,  also,  Jones  v.  Keen,  115  Mass.  170, 
where  the  court  intimated  that  compensation  should  not  be  computed 
upon  a  percentage  basis;  Special  Bank  Commrs,  v.  Franklin  Sav.  Inst.,. 
11  R.  I.  557  (same);  Tome  v.  King,  64  Md.  166,  21  Atl.  279  (same). 

72  Silvers  v.  Merchants'  &  M.  Sav.  Fund  &  Bldg.  Assn.  (N.  J.  Eq.),. 
56  Atl.  294. 


i  -41  EQUITABLE  KEMEUIES.  428 

versed  upon  appeal,  "and  he  is  directed  to  return  the 
property  to  the  persons  entitled  thereto,  his  compen- 
sation, as  a  general  thing,  will  not  be  paid  out  of  the 
funds  placed  in  his  hands.  When  the  appointment  of 
the  receiver  is  upon  an  application  adverse  to  the  de- 
fendant in  the  cause,  and  is  without  authority  of  law, 
the  receiver  must  look  for  his  fees  and  compensation 
to  the  complainant  in  the  suit,  upon  whose  application 
he  was  appointed."^^  The  amount  allowed  as  compen- 
sation in  such  cases  is  taxed  against  the  unsuccessful 
party  as  costs.  In  some  cases,  however,  the  receiver 
has  been  allowed  to  collect  his  compensation  from  the 
fund,  the  defendant  being  protected  by  being  awarded 
a  judgment  for  costs.^^  It  has  been  held  that  where  a 
receiver  is  appointed  by  the  consent  of  the  parties,  his 
compensation  may  be  paid  out  of  the  fund  in  his  hands, 
although  it  may  subsequently  develop  that  the  court 
was  without  jurisdiction  of  the  subject-matter.'^^  And 
where  the  appointment  was  oiiginally  valid  and  within 
the  power  of  the  court,  an  allowance  may  be  made  from 
the  fund,  although  it  may  finally  be  determined  that  the 
defendant  should  prevail."^  ^ 

73  McAnrow  v.  Martin,  183  111.  467,  56  N.  E.  168.  See,  also,  Link 
Belt  Machinery  Co.  v.  Hughes,  195  111.  413,  63  N.  E.  186  (affirming 
95  111.  App.  323);  Highley  v.  Deane,  168  111.  266,  48  N.  E.  50;  Ford 
V.  Gilbert,  42  Or.  528,  71  Pac.  971.  See  St.  Louis,  K.  &  S.  E.  Co.  v. 
Wear,  135  Mo.  230,  36  S.  W.  658,  33  L.  K.  A.  341,  to  the  effect  that 
when  the  appointment  is  in  excess  of  power  because  the  circum- 
fitanees  do  not  warrant  it,  compensation  should  not  be  deducted  from 
the  fund. 

74  Cutter  V.  Pollock,  7  N.  D.  631,  76  N.  W.  235. 

75  Ford  V.  Gilbert,  42  Or.  528,  71  Pac.  971. 

76  Clark  V.  Brown,  119  Fed.  130,  57  C.  C.  A.  76;  Hopfensack  v. 
Hopfensack,  61  How.  Pr.  498  ("The  receiver's  compensation  can- 
not be  made  to  depend  upon  the  result  of  the  litigation.  He  is  tha 
officer  of  the  court  who  takes  the  property,  the  right  to  which  is  in- 
volved in  dispute,  and  by  order  of  the  court  holds  it  for  the  benefit 
of   the   party   who    shall   ultimately   be    found    to   be    entitled    to   it. 


429  COMPENSATION   01'  KECEIVER.  i§  242,  243 

§  242.  Effect  of  Agreement. — The  appointment  of  a  re- 
ceiver and  the  fixing  of  his  compensation  are  judicial 
acts,  and  the  court  is  not  bound  by  agreements  between 
individuals  as  to  what  it  should  or  should  not  do.'^^ 
Where,  however,  one  subsequently  appointed  receiver 
agrees  with  a  party  to  serve  without  compensation  in 
consideration  of  an  agreement  of  such  party  not  to  ob- 
ject to  his  appointment,  the  court  will  not  permit  him 
to  repudiate  his  contract  In  such  case  no  compensa- 
tion will  be  allowed.'^^  Nor  will  compensation  be  al- 
lowed to  a  receiver  who,  being  interested  in  the  prop- 
erty, represents  to  the  court  at  the  time  of  his  appoint- 
ment that  he  will  make  no  such  claim.'^*  And  this  has 
been  insisted  upon  even  where  it  has  been  shown  that 
the  w^ork  has  proved  much  greater  than  was  antici- 
pated.*'* 

§  243.  Effect  of  Adjudication  of  Bankruptcy — The  ques- 
tion has  arisen  as  to  the  source  of  the  receiver's  com- 
pensation when  the  debtor  goes  into  bankruptcy  subse- 
quently to  the  appointment  of  a  receiver.     It  has  been 

....  The  property  in  the  hands  of  the  receiver  is  the  fund  from 
which  his  fees  must  be  paid"). 

77  Lichtenstein  v.  Dial,  68  Miss.  54,  8  South.  272;  Polk  v.  Johnson 
(Tnd.  App.),  65  N.  E.  536;  affirmed,  160  Ind.  292,  98  Am.  St.  Kep.  274, 
66  N.  E.  752, 

78  Polk  V.  Johnson  (Ind.  App.),  65  N.  E.  536;  affirmed,  160  Ind. 
292,  98  Am.  St.  Eep.  274,  66  N.  E.  752  ("Beyond  question  one  may 
waive  compensation  for  any  labor  performed,  both  before  and  after 
completion;  and  it  is  a  familiar  doctrine  that  one  cannot,  after  per- 
formance, change  his  mind,  and  charge  for  that  which  he  agreed  and 
undertook  to  do  as  a  gratuity").  It  has  been  held  that  an  agreement 
with  an  intervener  not  to  apply  for  compensation  to  the  detriment  of 
his  claim  does  not  entitle  the  intervener  to  the  allowance  of  his 
claim  from  commissions  allowed  from  funds  which  would  otherwise 
have  been  applied  in  payment  of  other  claims:  Broomfield  v.  B,oj, 
120  Fed.  502,  56  C.  C.  A.  652. 

79  Steel  ▼.  Holladay,  19  Or.  517,  25  Pac.  77. 

80  Id. 


i  244  EQUITABLE  EEMEDIES.  430 

held  that  the  receiver  is  entitled  to  compensation  out 
of  the  fund  before  it  is  turned  over  to  the  trustee  in 
bankruptcy.  There  is  no  breach  of  comity  between  the 
state  and  federal  courts  in  such  a  practice,  for  the 
federal  court  would,  if  requested,  allow  such  compensa- 
tion. Ordinarily,  the  court  appointing  a  receiver  can 
measure  more  readily  and  accurately  the  amount  of  his 
services  and  expenses  in  the  execution  of  its  own  de- 
cree.^^ 

§  244.    Payment  of  Costs  When  Fund  not  Sufficient It 

sometimes  happens  that  the  expenses  of  the  receiver- 
ship are  greater  than  the  fund  in  the  hands  of  the  re- 
€eiver.^2  In  such  cases  the  court  may  ascertain  the 
amount  of  the  deficiency,  and  it  must  be  borne  by  the 
party  at  whose  instance  the  receiver  was  appointed. 
The  receiver  cannot  be  justly  held  to  hold  and  operate 
the  property  at  his  own  expense  or  at  that  of  the  court. 
The  party  who  seeks  the  aid  of  the  court  must  see  that 
its  officer  is  protected  in  his  legitimate  expenditures. 

81  Mauran  v.  Crown  Carpet  Lining  Co.,  23  R.  I.  344,  60  Atl.  387; 
but  see  contra,  Bloch  v.  Bloch,  42  Misc.  Rep.  278,  86  N.  Y.  Supp.  1047, 
holding  that  wliere  suit  was  begun  and  a  receiver  appointed  within 
four  months  of  the  adjudication  of  bankruptcy,  the  receiver  must 
look  for  his  compensation  to  the  federal  court.  The  right  of  the 
state  court  to  settle  the  account,  allowing  payments  properly  made 
before  the  adjudication  of  bankruptcy  was  recognized. 

82  "If  the  complainant  was  not  willing  to  pay  the  expenses  of  the 
receivership  it  asked  for,  in  the  event  of  the  insufficiency  of  the 
property  to  do  so,  it  should  not  have  asked  the  court  to  make  the 
-appointment,  incur  the  liabilities,  and  pledge  its  faith  to  their  pay- 
ment. It  was  the  duty  of  the  complainant  to  keep  informed  in  re- 
spect to  the  progress  of  the  receivership,  the  property,  and  its  proba- 
ble outcome,  and,  whenever  it  became  unwilling  to  further  stand 
good  for  any  deficiency,  to  ask  the  court  to  bring  to  an  end  the 
business  it  undertook  and  was  conducting  on  complainant's  petition": 
■Chapman  v.  Atlantic  Trust  Co.,  56  C.  C.  A.  61,  119  Fed.  257.  See,  also, 
Ephraim  v.  Pacific  Bank,  129  Cal.  589,  62  Pac.  177;  Farmers'  Nat 
liank  V.  Backus,  74  Minn.  264,  77  N.  W.  142. 


431  RECEIVERS;  PAYMENT  OF  COSTS.  S  2« 

The  receiver  may  enforce  his  right  by  action  after  the 
receivership  proceedings  are  dismissed.^^  In  Oregon, 
however,  it  is  held  that  employees  cannot  hold  the  par- 
ties liable  for  wages  due  unless  terms  imposing  such 
liability  are  made  a  condition  of  the  appointment  or 
continuance  in  office  of  the  receiver.^^ 

§  245.     Payment  of  Costs  Where  Receivership  Proceedings 

Void Where  an  order  appointing  a  receiver  is  beyond 

the  jurisdiction  of  the  court,  and  is  therefore  void,  the 
expenses  and  costs  will  not  be  deducted  from  the  fund.^'* 
In  such  cases  the  receiver  is  left  to  pursue  his  remedy 
against  the  party  at  whose  instance  he  was  appointed. 
The  same  is  true  when  it  appears  that  the  property  be- 

83  Ephraim  v.  Pacific  Bank,  129  Cal.  589,  62  Pac.  177. 

84  "The  appointment  of  a  receiver  in  a  suit  to  foreclose  a  railroad 
mortgage  is  not  a  matter  of  strict  right,  but  rests  in  the  sound  judi- 
cial discretion  of  the  court;  and  it  may,  as  a  condition  to  issuing 
the  necessary  order,  impose  such  terms  as  may,  under  the  circum- 
stances of  the  particular  case,  appear  to  be  reasonable,  and,  if  not 

acceded  to,  may  refuse  to  make  the  order No  court  is  bound 

or  ought  to  engage  or  continue  in  the  operation  of  a  railroad  or  any 
other  enterprise  without  the  ability  to  promptly  discharge  its  obliga- 
tions; and,  unless  it  can  do  so,  it  should  keep  out,  or  immediately 
go  out,  of  the  business.  But,  unless  such  terms  are  imposed  as  a  con- 
dition of  the  appointment  or  continuation  in  oflSce  of  the  receiver, 
his  employees  must  look  to  the  property  in  the  custody  of  the  court 

and  its  income  for  their  compensation They  are  the  employees 

and  servants  of  the  court,  and  not  of  the  parties.  Their  wages  are 
in  no  sense  costs  of  the  litigation;  and,  although  incurred  during  the 
progress  of  the  suit,  they  are  not  incurred  in  the  suit.  They  are 
neither  expenses  of  the  plaintiff,  nor  of  the  defendant,  and  are  not 
fees  or  costs  which  can  be  charged  against  the  successful  party  to 
the  litigation,  as  is  sought  to  be  done  in  this  case":  Farmers'  Lonu 
&  Trust  Co.  v.  Oregon  Pac.  R.  Co.,  31  Or.  237,  65  Am.  St.  Rep.  Sl'2, 
48  Pac.  706,  38  L.  R.  A.  424,  per  Bean,  J. 

85  See  §  241,  relating  to  the  receiver's  compensation  in  such  cases, 
and  authorities  there  cited.  See,  also,  Sullivan  v.  Gage  (Cal.),  79 
Pac.  537.  Compare  Beach  v.  Macon  Grocery  Co.,  125  Fed.  513,  60  C. 
C.  A.  557;  Horn  v,  Bohn,  96  Md.  8,  53  Atl.  576. 


i  245  EQUITABLE  REMEDIES.  432 

longs  to  a  third  person.^®  Where,  however,  the  court 
has  jurisdiction,  the  fact  that  the  defendant  finally  pre- 
vails will  not  deprive  the  receiver  of  his  right  to  resort 
to  the  fund.*"^ 

86  Howe  V.  Jones,  66  Iowa,  156,  23  N.  W.  376. 

87  Clark  V.  Brown,  119  Fed.  130,  57  a  C.  A.  76;  Hopfensack  v.  Hop- 
fensack,  61  How.  Pr.  498. 


43S  EECEIVEESj  REMOVAL  AND  DISCHAEQE.  i  246 


CHAPTER  X. 


EEMOYAL  AXD  DISCHARGE  OF  RECEIVERa 

ANALYSIS. 

f  246.     Eemoval  of  receiver, 
§  247.     Discharge  of  receiver. 

§  246.  Removal  of  Receiver — It  is  within  the  discre- 
tion of  the  court  to  remove  a  receiver  when  it  appears 
that  for  any  reason  he  is  not  a  proper  party  to  remain 
in  charge.  If  it  is  shown  that  he  has  not  accomplished 
what  he  should,  with  due  diligence,  have  succeeded  in 
doing,  or  if  he  is  incompetent,  he  may  be  removed.^ 
Any  active  abuse  of  trust,  such  as  working  for  the  ad- 
vancement of  private  interests  at  the  expense  of  those 
of  the  parties  to  the  proceeding,  will  warrant  such  ac- 
tion.2  Where  it  appears  that  his  duties  as  receiver 
will  conflict  with  his  private  interests,  the  court  will 
not  hesitate  to  deprive  him  of  his  office.^  It  is  his  duty 
to  stand  neutral  between  the  parties.  When,  there- 
fore, it  appears  that  there  are  two  hostile  parties,  both 
seeking  control,  the  court  may  remove  the  representa- 
tive of  one  faction  and  appoint  a  successor  who  is  not 
interested  with  either  side.* 

1  In  re  Angell,  131  Mich.  345,  91  N.  W.  611.  To  the  effect  that 
the  receiver  cannot  appeal  from  the  order  removing  him,  see  Ellicott 
V.  Warford,  4  Md.  80,  85;  also,  §  178,  ante. 

2  Atkins  V.  Wabash,  St.  L.  &  P.  Ey.  Co.,  29  Fed.  161. 

8  Eichberg  v.  Wickham,  21  N.  Y.  Supp.  647  (duty  as  assignee  to  ao- 
count  to  receiver). 

4  Wood  V.  Oregon  Development  Co.,  55  Fed.  901  (* '  The  feeling  which 

hia   appointment   creates  in  the  party   opposed  to   those  asking  his 

appointment  is  such  that  his  position  will  be  an  embarrassing  one, 

and  his  usefulness  as  an  officer  of  the  court    impaired");  Meier  t. 

Equitable  Eemedies,  Vol.  I — ^28 


S  246  EQUITABLE    KEMEDIES.  434 

It  has  been  held,  however,  that  the  mere  fact  that  the 
receiver  was  a  director  and  the  treasurer  of  the  defend- 
ant corporation  is  not  alone  ground  for  removal.^  Nor 
will  the  fact  that  he  has  assisted  in  promoting  a  reor- 
ganization scheme  warrant  such  action;^  nor  that  in 
the  future  his  private  interests  may  possibly  conflict 
with  his  duties^  The  receiver  of  a  large  railroad  cor- 
poration will  not  be  removed  on  account  of  fraudulent 
luiscouduct  of  his  employees,  of  which  he  could  know 
nothing.^  Mere  mistakes  in  management  are  not  suf- 
ficient ground,  unless  so  gross  as  to  show  the  receiver 
to  be  incompetent.* 

Kailway  Co.,  5  Dill.  478,  Fed.  Cas.  No.  9395  ("It  becomes  a  duty  of 
the  court  to  see  that  its  powers  are  exercised  on  principles  of  strict 
neutrality  as  regards  the  belligerents;  and  this  can  be  done  in  this 
case  by  removing  the  representative  of  these  hostile  interests,  and 
appointing  a  receiver  who,  in  feeling  and  in  conduct,  will  be  strictly 
neutral  and  strictly  honest"). 

5  Townsend  v.  Oneonta,  C.  &  R.  S.  Ry.  Co.,  83  N.  Y.  Supp.  1034, 
86  App.  Div.  604,  13  N.  Y.  Ann.  Gas.  402.     See  ante,  §§  152,  153. 

6  Clark  v.  Central  R.  &  B.  Co.,  66  Fed.  16;  Fowler  v,  Jarvis-Conk- 
lin  Mtg.  Co.,  63  Fed.  883.  In  the  former  case,  Jackson,  Cir.  J,,  said: 
"It  is  not  improper  for  a  receiver  in  cases  like  the  present,  to  ad- 
vise, aid,  and  encourage  reorganization  schemes,  which  offer  the  pros- 
pect of  securing  the  largest  measure  of  protection  to  the  various  in- 
terests connected  with  or  concerned  in  the  property  and  assets  in  the 
custody  of  the  court,  and  in  the  possession  of  such  receiver,  for  ad- 
ministration and  distribution."  In  the  latter  case  Lacombe,  Cir.  J., 
said:  "Nor  is  it  any  ground  for  removal  that  one  of  the  receivers 
has  become  a  member  of  a  reorganization  committee.  Several  fed- 
eral courts  have  approved  of  such  a  practice;  and  although  this  court 
entertains  a  different  opinion,  and  will  require  absolute  neutrality  on 
the  part  of  its  officers,  as  between  conflicting  plans  of  reorganization, 
it  will  be  sufficient  if  the  receiver,  now  that  some  conflict  over  the 
plan  of  reorganization  is  foreshadowed,  promptly  resign  from  mem- 
bership of  the  committee." 

7  Land  Title  &  Trust  Co.  v.  Asphalt  Co.  of  America,  120  Fed.  996. 

8  Clarke  v.  Central  R.  &  B.  Co.,  66  Fed.  16. 

9  Clarke  v.  Central  R.  &  B.  Co.,  66  Fed.  16.  In  this  case  the  court 
said:  "In  the  management  of  these  extensive  properties  it  is  a  great 
deal  easier  to  look  back  and  find  faults  than  it  is  to  guard  in  advance 
agaiuKt  mistakes.     I  see  things  in  this  case  that  I  disapprove.     Some 


435  BECEIVERS;   REMOVAL  AND  DISCHARGE.  S  247 

§  247.  Discharge  of  Receiver. — The  removal  of  a  re- 
ceiver merely  changes  the  personnel ;  the  discharge  ter- 
minates the  receivership.^®  Both  of  these  matters  rest 
largely  within  the  sound  discretion  of  the  court* ^ 
When  the  object  of  the  appointment  has  been  fulfilled, 
the  receiver  should,  in  general,  be  discharged.^  ^  The 
property  should  pass,  with  as  little  delay  as  is  reason- 
ably practicable,  into  the  possession  and  control  of  the 
owners;  and  where  the  parties  unduly  prolong  the  pro- 
ceedings, the  court  may  consider  means  of  ending  the 
matter.^  ^  It  is  said  that  neither  entry  of  judgment  in 
favor  of  the  defendant  nor  a  sale  of  the  property  will 
of  itself  discharge  the  receiver.  In  both  cases,  however, 
the  court  will  generally  make  an  order  to  that  effect** 

things  have  been  done  that  were  not  the  best  under  the  eireumstancea, 
but,  after  a  careful  consideration  of  the  situation,  I  do  not  see  that 
the  receiver  is  to  be  blamed  therefor." 

10  For  a  good  statement  of  the  distinction  between  the  terms,  see 
Fagett  V.  Brooks,  140  Ala.  257,  37  South.  263. 

11  Hoffman  v.  Bank  of  Minot,  4  N.  D.  473,  61  N.  W.  1031.  The 
order  of  discharge  cannot  be  collaterally  attacked:  Ferguson  r. 
Toledo,  A.  A.  &  N.  M.  R.  Co.,  83  N.  Y.  Supp.  283,  85  App.  Div.  352. 

12  Thus,  where  a  receiver  is  appointed  in  a  stockholder's  suit 
for  mismanagement  of  corporate  affairs,  the  receiver  should  be  dis- 
charged when  a  new  set  of  officers  is  elected  and  takes  charge; 
Duncan  v.  George  C.  Treadwell  Co.,  82  Hun,  376,  31  N.  Y.  Supp.  340. 
Where  the  amount  of  the  mortgage  debt  has  been  definitely  fixed  by 
the  court,  the  defendant  has  been  allowed  to  pay  the  sum  and  have 
the  receiver  discharged:  Milwaukee  &  M.  R.  R.  Co.  v.  Soutter,  69 
TJ.  S.  510,  17  L.  ed.  900.  In  general,  see  Branner  v.  Webb,  10  Kan. 
App.  217,  63  Pac.  274. 

13  Taylor  v.  Philadelphia  &  R.  E.  Co.,  9  Fed.  1;  Piatt  v.  Phila- 
delphia &  R.  R.  Co.,  65  Fed.  872. 

14  To  the  effect  that  his  official  character  remains  until  he  is  dis- 
charged by  order  of  the  court,  see  Erb  v.  Popritz,  59  Kan.  264,  68 
Am.  St.  Rep.  362,  52  Pac.  871.  A  discharge  upon  judgment  for  the 
defendant  is  proper,  although  an  appeal  may  be  taken  from  the 
judgment:  Harris  v.  Root,  28  Mont.  159,  72  Pac.  429.  See,  also, 
Baughman  v.  Superior  Court,  72  Cal.  572,  14  Pac.  207.  When  the 
order  appointing  has  been  vacated,  and  no  property  has  come  into 
the  receiver's   hands,   he  should   be  discharged:   People   v.   Bushwick 


i  247  EQUITABLE    EEMEDIES.  436 

It  is  said  that  a  receiver  should  not  be  discharged  upon 
motion  of  the  complainant  upon  satisfaction  of  his 
claim,  against  the  protest  of  a  non-satisfied  creditor, 
who  might  be  injured  thereby.^''  It  is  held,  however, 
that  general  creditors  are  not  entitled  to  notice  of  the 
proceedings  for  discharge.^®  "The  effect  of  a  discharge 
of  a  receiver,  and  the  surrender  of  jurisdiction  over  the 
trust,  without  any  reservation  of  existing  claims,  is  to 
release  not  only  the  receiver,  but  also  the  property,  from 
further  liability."^^ 

Chem.  Co.,  63  Hun,  633,  18  N.  T.  Supp.  542;  affirmea,  133  N.  T.  694, 
31  N.  E.  627. 

15  Lenoir  v.  Linville  Imp.  Co.,  117  N.  C.  471,  23  S.  E.  442;  Foun- 
tain V.  Mills,  111  Ga.  122,  36  S.  E.  428. 

16  New  York  &  W.  U,  Tel.  Co.  v.  Jewett,  115  N.  Y.  166,  21  N.  E. 
1036;  Eockwell  v,  Portland  Sav,  Bank,  31  Or.  431,  50  Pac.  566. 

17  Johnson  v.  Central  Trust  Co.,  159  Ind.  605,  65  N.  E.  1028.  To 
the  effect  that  he  cannot  be  sued  after  discharge,  see  ante,  §  179. 
Where,  however,  the  decree  of  discharge  declares  that  he  may  de- 
fend suits,  a  suit  commenced  at  the  time  may  be  continued  against 
Mm:  Denver  &  R.  G.  R.  Co,  v.  Gunning  (Colo.),  80  Pac.  727.  For  a 
ease  holding  that  the  discharge  leaves  the  property  subject  to  all 
claims  and  charges,  see  Texas  Pac.  R.  Co.  v.  Johnson,  76  Tex.  421, 
18  Am.  St.  Rep.  60,  13  S.  W.  463. 


tff  FOBEION    SECEIVESa.  i  248 


CHAPTER  XI. 


FOREIGN  EECEIVERS;  ANCILLARY  RECEIVERS. 

ANAI.YSI8. 

8  248.    General  tendency  toward  recognition  of  rights  of  for- 

eign receiver. 

I  249.  Bight  of  foreign  receiver  to  sne  outside  of  jurisdiction 
of  court  of  appointment  is  only  recognized  wher* 
that  court  has  conferred  the  power. 

§  250.  Eight  of  foreign  receiver  to  sue  not  dependent  on  ex- 
istence of  cause  of  action  in  state  exercising  comitj. 

{  251.     Bight  of  attaching  creditors  against  foreign  receiver. 

9  252.     Bight  of  attaching  creditors  with  reference  to  eitizen- 

ship  or  residence. 
8  253.    Bights  of  foreign  receivers  against  subsequent  attack- 
ing creditors. 

8  254.    Same;  as    affected    by    question  of    citizenship  or  resi- 

dence. 

9  255.    Actions  by  foreign  receiver  not  dependent  on  comity; 

(1)  Property  rights. 
I  258.     Same;   (2)   Eights  by  contract. 
8  257.    Power  of  court  of  appointment  over  receiver  and  otkar 

parties. 
18  258-261.     Ancillary  receivers. 
8  258.     Appointment. 
8  259.     Administration  of  the  fund. 
8  260.     Same;  how  far  conclusive  on  primarj  receiver. 
8  261.     Surrender  of  fund. 

§  248.  General  Tendency  Toward  Rccogfnition  of  Bights  of 
Foreigfn  Receiver — It  has  often  been  said  that  a  receiver 
appointed  by  a  court  of  equity  has  no  extra-territorial 
powers.*  But  while  this  statement  is  strictly  true,  it  is 
apt,  under  modern  conditions,  to  be  misleading.  Every 
reason  that  would  operate,  for  example,  in  favor  of  the 
recognition  of  the  rights  of  a  foreign  corporation  would 

I  Booth  V.  Clark,  17  How.  322,  15  L.  ed.  164. 


{  249  EQUITABLE    KEMEDIE3.  438 

operate  with  equal  force  in  favor  of  tlie  recognition  of 
the  foreign  receiver.  The  latter  owes  his  powers  to  the 
order  appointing  him,  which  is  "the  charter  of  his 
powers,"  just  as  the  corporation  owes  its  existence  to 
the  charter  from  the  legislature.  Both  are  enabled  to 
act  outside  of  the  state  of  their  creation  solely  by  the 
comity  of  otlier  states  and  nations.^  Those  cases  which, 
following  dicta  in  the  case  of  Booth  v.  Clark,  broaJiy 
lay  down  the  statement  that  the  foreign  receiver  can- 
not sue  outside  of  the  state  of  appointment  are  not  in 
line  with  the  tendency  of  modern  authorities,  which 
is  to  extend  to  citizens  of  or  artificial  persons  created 
by  foreign  states  the  same  recognition  afforded  to  the 
citizens  or  artificial  creatures  of  the  domestic  state.^ 

§  249.  Right  of  Foreign  Receiver  to  Sue  Outside  of  Jur- 
isdiction of  Court  of  Appointment  is  Only  Recognized  Where 
that  Court  has  Conferred  the  Power. — ^There  is  no  doubt 

2  Bank  of  AugTista  v.  Earle,  13  Pet.  519,  10  L.  ed.  274.  The  re- 
ceiver's decree  of  appointment  is  called  the  "charter  of  his  powers" 
in  Schultz  v.  Phenix  Ins.  Co.,  77  Fed.  375,  387. 

3  Gilman  v.  Ketcham,  84  Wis.  60,  36  Am.  St.  Eep.  899,  54 
N.  W.  393,  23  L.  E.  A.  52,  where  Pinney,  J.,  says:  "The  tendency 
of  modem  adjudications  is  in  favor  of  a  liberal  extension  of  inter- 
state comity,  and  against  a  narrow  and  provincial  policy,  which 
would  deny  proper  effect  to  judicial  proceedings  of  sister  states  under 
their  statutes  and  rights  claimed  under  them,  simply  because, 
technically,  they  are  foreign  and  not  domestic";  Boulware  v.  Davis, 
90  Ala.  207,  8  South.  84,  9  L.  R.  A.  €01;  Hurd  v.  City  of  Elizabeth, 
41  N.  J.  L.  1;  Tompkins  v.  Blakey,  70  N.  H.  584,  49  Atl.  111.  In 
Lewis  V.  American  Naval  Stores  Co.,  119  Fed.  391,  397,  the  court  says: 
"The  constant  tendency  of  the  courts  is  toward  a  more  enlarged  and 
liberal  policy— the  recognition  of  the  receiver's  right  to  the  posses- 
sion of  the  property  embraced  by  the  decree  appointing  him,  although 
situated  without  the  jurisdiction  of  the  court  making  the  appoint- 
ment  This   tendency   is   so   pronounced   and   so   well   sustained 

by  authority  that  it  is  probable  that  the  doctrine  ultimately  to  be 
established  will  give  to  receivers  the  same  right  of  action  in  all 
the  states  of  the  Union  with  which  they  are  invested  in  the  jurisdic- 
tion  in   which  they   are   appointed." 


439  FOKEIGN    EECEIVERS.  §  249 

that  the  prevailing  rule  in  America  accords  the  foreign 
receiver  the  right  to  sue  outside  of  the  appointing  jur- 
isdiction where  that  right  has  been  conferred  upon  him 
in  the  state  of  his  appointment,  when  the  statutes  or 
public  policy  of  the  state  do  not  forbid  such  suit,  and 
when  the  rights  of  domestic  creditors,  or  foreign  cred- 
itors who  have  prior  attachments  are  not  affected.''     Of 

4  In  Hurd  v.  City  of  Elizabeth,  41  N.  J.  L.  1,  the  court,  by  Beasley, 
C.  J.,  after  quoting  the  general  rule  laid  down  in  High  on  Receivers,  § 
239,  that  the  foreign  receiver  cannot  sue,  says:  "There  are  certainly 
dicta  that  go  even  to  that  exent,  so  that  text-writers  seem  to  have  felt 
themselves  warranted  in  declaring  that  the  powers  of  an  officer  of  this 
kind  are  strictly  circumscribed  by  the  jurisdictional  limits  of  the 
tribunal  from  which  he  derives  his  existence,  and  that  he  will 
not  be  recognized  as  a  suitor  outside  of  such  limits.  But  I  think  the 
more  correct  definition  of  the  legal  rule  would  be  that  a  receiver 
cannot  sue,  or  otherwise  exercise  his  functions,  in  a  foreign  juris- 
diction whenever  such  acts,  if  sanctioned,  would  interfere  with  the 
policy  established  by  law  in  such  foreign  jurisdiction.     There  seems 

to  be  no  reason  why  this  should  not  be  the  accepted  principle 

The  question  thus  raised  has  nothing  to  do  with  that  other  inquiry 
that  is  frequently  discussed  in  the  books,  whether  a  receiver  at 
common  law  is  in  point  of  fact  clothed  with  the  power  to  sue  in  a 

foreign    jurisdiction Conceding    that    the    ofiicer    is    invested 

with  this  fullness  of  authority,  it  would  appear  to  be  in  harmony 
with  those  legal  principles  by  which  the  intercourse  of  foreign  states 
is  regulated,  for  every  government,  when  its  tribunals  are  appealed 
to,  to  render  every  assistance  in  its  power  in  furtherance  of  the 
execution  of  such  authority,  except  in  those  cases  when,  by  so  doing, 
its  own  policy  would  be  displaced  or  the  rights  of  its  own  citizens 

invaded    or    impaired To    sanction    such    a   plea    would    be    to 

frustrate,  as  far  as  possible,  the  foreign  procedure,  simply  for  the 
purpose  of  doing  so,  the  single  result  being  that  a  court  would  be 
baffled,  and  perhaps  prevented  from  doing  justice.  Such  ought  not 
to  be  the  legal  attitude  of  governments  towards  each  other":  Gray- 
don  v.  Church,  7  Mich.  36;  Hale  v.  Hardon,  95  Fed.  747,  37  C.  C.  A. 
240;  Tompkins  y  Blakey,  70  N.  H.  584,  49  Atl.  Ill;  National  T.  Co. 
V.  Miller,  33  N.  J.  Eq.  155;  Sobernheimer  v.  Wheeler,  45  N.  J.  Eq. 
614,  18  Atl.  234;  Bidlack  v.  Mason,  26  N,  J.  Eq.  230;  Howarth  v. 
Angle,  162  N.  Y.  179,  56  N.  E.  489,  47  L.  R.  A.  725;  Lycoming  Ins. 
Co.  V.  Wright,  55  Vt.  526;  Parker  v.  Stoughton  Mill  Co.,  91  Wis.  174,, 
51  Am.  St.  Rep.  881,  64  N.  W.  751;  Rorrrrs  v.  Riley,  80  Fed.  759; 
Barley  v.  Gittings,  15  App.  Dec.  427;  and  cases  cited  below  in  sec- 
tions on  Rights  of   Attaching  Creditors.     The   foreign   receiver   may 


fi  249  EQUITABLE    EEMEDIES.  440 

course,  a  preliminary  question  in  regard  to  his  capacity 
is  always  to  be  answered:  Has  he  been  authorized  by 
the  appointing  jurisdiction  to  sue?  Such  power  should 
appear  from  his  pleading;  as  that  he  has  been  expressly 
authorized  to  sue,^  or  that  he  is  an  assignee  vested  with 

even  sue  to  recover  real  property,  or  to  foreclose  a  mortgage  on  such 
property:  Lewis  v.  Clark,  129  Fed.  570,  64  C.  C.  A.  138;  Small  v. 
Smith,  14  S.  D.  621,  86  Am.  St.  Eep.  808,  86  N.  W.  649.  Many  cases, 
however,  go  to  the  length  of  denying  the  foreign  receiver  the  right 
to  sue,  even  where  no  rights  of  creditors  or  others  intervene:  Holmes 
v.  Sherwood,  16  Fed.  725,  3  McCrary,  405;  Hazard  v.  Durant,  19  Fed. 
471,  476;  Commercial  Nat.  Bank  v.  Motherwell  Iron  &  Steel  Co.,  95 
Tenn.  172,  31  S.  W.  1002,  29  L.  E.  A.  164;  Moreau  v.  Du  Bellet  (Tex. 
Civ.  App.),  27  S.  W.  503;  Moseby  v.  Burrow,  32  Tex.  402.  See,  also, 
the  recent  case,  Great  Western  Min.  &  Mfg.  Co.  v.  Harris  (May  29, 
1905),  25  Sup.  Ct.  770.  These  cases  all  rest  on  the  dicta  in  Booth  v. 
Clark,  supra,  which,  it  is  submitted,  decided  no  such  point.  The  for- 
eign receiver's  right  rests  on  a  somewhat  more  substantial  ground 
than  "by  favor  of  courtesy"  (Boulware  v.  Davis,  90  Ala.  207,  8 
South.  84,  9  L.  K.  A.  601),  nor  should  it  be  denied  because  the  court  in 
its  "discretion"  thinks  that  the  cause  of  action  is  inequitable:  Wyman 
V.  Eaton,  107  Iowa,  217,  70  Am.  St.  Eep.  193,  77  N.  W.  865,  43  L.  K. 
A.  695.  "Comity  is  neither  matter  of  absolute  obligation  nor  of  mere 
courtesy  and  good-will.  It  is  the  recognition  which  one  nation  allows 
within  its  territory  to  the  legislative,  executive,  or  judicial  acts  of  an- 
other nation,  having  due  regard  both  to  international  duty  and  con- 
venience, and  to  the  rights  of  its  own  citizens  or  of  other  persons  who 
are  under  the  protection  of  the  laws":  Hilton  v.  Guyot,  159  U.  S. 
113,  16  Sup.  Ct.  139,  40  L.  ed.  95.  It  must  be  remembered  that 
the  recognition  of  the  foreign  act  is  made  by  the  political  branch 
of  the  government,  the  courts  merely  declaring  the  state's  mandates. 
€ee  Wyman  v.  Kimberly  Clark  Co.,  93  Wis.  554,  67  N.  W.  932,  for  a 
proper  conception  of  "comity."  Where  the  corporation  for  which 
the  receiver  has  been  appointed  has  violated  the  laws  of  the  state, 
the  courts  will  not  allow  the  receiver  appointed  in  the  state  of  the 
corporation's  domicile  to  sue:  Parker  v.  Lamb,  99  Iowa,  265,  68  N. 
W.  686,  34  L.  E.  A.  704.  Compare  article  on  Extra-territorial  Juris- 
diction of  Eeceivers  in  22  Am.  L.  Eeg.  289  (1883),  by  Adelbert  Ham- 
ilton, with  article  on  same  subject,  58  Cent.  L.  J.  284  (1903),  to  illus- 
trate development  of  law  on  the  subject  of  rights  of  foreign  receiv- 
ers. 

5  Swing  V.  White  Eiver  L.  Co.,  91  Wis.  517,  65  N.  W.  174  (receiver 
must  aver  right  to  sue,  unless  he  is  assignee);  Castleman  v.  Temple- 
man,  87  Md.  546,  67  Am.  St.  Eep.  363,  40  Atl.  275,  41  L.  E.  A.  367. 


441  FOREIGN    RECEIVERS.  §  250 

an  interest  which  would  enable  him  to  maintain  an  ac- 
tion,® or  that  the  defendant  has  recognized  his  rightJ 
The  question  is  therefore  often  complicated  by  local 
rules  of  practice  and  pleading.  Thus,  in  states  where 
the  assignee  cannot  sue  at  law  on  an  assigned  chose  in 
action  in  his  own  name,  a  receiver  to  whom  such  chose 
in  action  has  been  assigned  by  judicial  proceedings  in 
the  state  of  his  appointment  cannot  maintain  an  action 
at  law  on  such  assigned  claim.*  Generally  the  rules  as 
to  capacity  of  parties  depend  upon  the  lex  fori.^ 

§  250.     Right  of  Foreign  Receiver  to  Sue  not  Dependent 

on  Existence  of  Cause  of  Action  in  State  Exercising  Comity 

It  is  no  objection,  however,  to  the  right  of  a  foreign  re- 
ceiver to  maintain  an  action  in  the  local  courts  that 
the  cause  of  action  is  unknown  to  the  law  administered 
in  those  courts.  "It  is  not  necessary  that  the  process  to 
enforce  the  liability  in  question,"  says  Vann,  J.,  "should 
be  that  required  by  statute  in  this  state  in  the  case  of 
domestic  corporations,  as  that  would  be  frequently  im- 
possible and  would  withhold  the  right  of  comity  al- 
together. It  is  sufficient  if  the  method  of  procedure  in 
our  courts  is  such  that  no  injustice  is  done  to  the  de- 

6  See  infra,  Action  by  Receivers  not  Dependent  on  Comity;  (1) 
Property    Rights,    §    255. 

7  See  infra,  Actions  by  Receivers  not  Dependent  on  Comity;  (2) 
Rights   by   Contract,    §    256. 

8  Murtey  v.  Allen,  71  Vt.  377,  76  Am.  St.  Rep.  779,  45  Atl.  752; 
King  V.  Cochran,  72  Vt.  107,  47  Atl.  394. 

9  Minor  on  Conflict  of  Laws,  §  206,  to  the  effect  that  all  these 
matters  are  determined  by  the  lex  fori.  An  ordinary  foreign  re- 
ceiver cannot  sue  in  his  own  name:  Wilson  v.  Welch,  157  Mass.  77, 
31  N.  E.  712;  even  though  authorized  to  do  so  by  the  court  of  ap- 
pointment: Hayward  v.  Leeson,  176  Mass.  310,  57  N.  E.  656,  49  L. 
R.  A.  725.  See,  also,  Rogers  v.  Haines,  96  Ala.  586,  11  South.  651, 
103  Ala.  198,  15  South.  606. 


ii  251,252  EQUITABLE    EEMEDIES.  442 

fendant  or  to  any  citizen  of  this  state,  and  the  estab- 
lished policy  of  the  state  is  not  interfered  with."^" 

§  251.  Rights  of  Attaching  Creditors  Against  Foreign  Re- 
ceivers.— In  accordance  with  these  principles  it  is  well 
settled  that  courts  will  permit  receivers  appointed  by 
tribunals  in  foreign  jurisdictions  (in  whom,  strictly 
speaking,  no  rights  are  vested  in  things  outside  of  the 
state  of  appointment)  to  recover  possession  of  per- 
sonal property  or  to  enforce  the  collection  of  choses  in 
action,  even  from  its  own  citizens,  where  no  rights  of 
third  persons  have  intervened.^  ^  Some  of  the  cases 
seem  to  place  this  right  of  the  foreign  receiver  to  sue 
for  choses  in  action  upon  the  ground  that  the  situs  of 
the  chose  in  action  is  at  the  domicile  of  the  creditor,  and 
therefore  he  becomes  vested  with  the  property  by  as- 
signment at  the  domicile,^  2  but  this  principle  could  not 
explain  his  right  to  sue  for  tangible  and  immovable 
things  in  the  second  jurisdiction,  and  it  is  submitted 
that  the  better  ground  upon  which  these  decisions  rest 
is  the  right  of  comity.  The  real  reason  is,  as  was  said 
by  the  New  Hampshire  court:  "The  question  is  not 
strictly  one  of  law.  It  is,  rather,  one  of  courteous 
treatment  of  an  officer  of  a  sister  state."^^ 

§  252.  Right  of  Attaching  Creditors  with  Reference  to 
Citizenship  or  Residence. — Where  the  rights  of  third  per- 
sons, citizens  of  the  state  in  which  the  foreign  receiver 
sues,  have  attached  to  property,  or  to  a  fund,  before  the 

10  Howarth  v.  Angle,  162  N.  Y.  179,  56  N.  E.  489,  47  L.  E.  A.  725, 
730. 

11  See  cases  cited  in  note  4,  supra. 

12  Gilbert  v.  Hewetson,  79  Minn.  326,  79  Am.  St.  Eep.  486,  82  N. 
W.  655;  Parker  v,  Stoughton  Mill  Co.,  91  Wis.  174,  51  Am.  St.  Eep. 
881,   64   N.   W.   751. 

13  Tompkins  v.  Blakey,  70  N.  H.  584,  49  Atl.  111. 


443  FOREIGN    RECEIVERS.  S  252 

foreign  receiver  has  been  appointed,  it  is  generally  held 
that  such  rights  will  prevail,  and  that  the  rule  of  comity 
does  not  extend  to  aiding  the  foreign  receiver  in  collect- 
ing the  fund  or  property  so  as  to  impair  such  vested 
rights.^*  The  cases  have  usually  had  to  deal  with  the 
rights  of  attaching  creditors  who  were  also  citizens  or 
residents  of  the  state  in  which  the  attachment  was 
levied,  but  where  the  question  has  been  raised  it  has 
been  held  that  a  bona  fide  attaching  creditor,  even 
though  he  be  not  a  citizen  of  the  state,  will  be  pro- 
tected in  his  lien  or  possession  as  against  a  foreign  re- 
ceiver subsequently  appointed.^ ^  It  is  submitted  that 
this  doctrine  is  not  only  equitable,  but  also  that  no 
distinction  can  be  permitted  between  citizens  and  other 

14  Catlin  V.  Wilcox  Silver  Plate  Co.,  123  Ind.  477,  18  Am.  St.  Eep. 
338,  24  N.  E.  250,  8  L.  E.  A.  62;  Solis  v.  Blank,  199  Pa.  St.  600,  49 
Atl.  302;  Frowert  v.  Blank,  205  Pa.  St.  299,  54  Atl.  1000;  Southern 
B.  &  L.  Assn.  V.  Price,  88  Md.  155,  41  Atl.  53,  42  L.  E.  A.  206;  Taylor 
V.  Columbian  Ins.  Co.,  14  Allen,  353;  Ward  v.  Connecticut  Pipe  Mfg. 
Co.,  71  Conn.  345,  71  Am.  St.  Eep.  207,  41  Atl.  1057,  42  L.  E.  A. 
706;  Ward  v.  Pacific  Mut.  Life  Ins.  Co.,  135  Cal.  235,  67  Pac.  124; 
Zacher  v.  Fidelity  T.  &  S.  V.  Co.,  106  Fed.  593,  45  CCA.  480;  Hunt 
V.  Columbian  Ins.  Co.,  55  Me.  290,  92  Am.  Dec.  592;  Booth  v.  Clark, 

17  How.  322,  15  L.  ed.  164.  Even  where  no  rights  by  way  of  lien 
appear  eourts  will  not  exercise  comity  to  the  prejudice  of  other 
creditors:  Olney  v.  Tanner,  10  Fed.  101;  Baldwin  v.  Hosmer,  101 
Mich.  119,  59  N.  W.  432,  25  L.  E.  A.  739;  Holbrook  v.  Ford,  153  111. 
633,  46  Am.  St.  Eep.  917,  39  N.  E.  109,  27  L.  E.  A.  324.  In  the 
case  of  Falk  v,  Janes,  49  N.  J.  Eq.  484,  23  Atl.  813,  a  foreign  re- 
ceiver appointed  on  a  creditor's  bill  was  held  entitled  to  maintain 
the  action  even  to  the  prejudice  of  a  citizen  of  New  Jersey,  where 
lie  prosecuted  the  action  solely  for  the  benefit  of  another  citizen  of 
New  Jersey. 

15  Ward  V.  Connecticut  Pipe  Mfg.  Co.,  71  Conn.  345,  41  Atl.  1057, 
71  Am.  St.  Eep.  207,  42  L.  E.  A.  706;  Linville  v.  Hadden,  88  Md.  594, 
41  Atl.  1097,  43  L.  E.  A.  222;  Solis  v.  Blank,  199  Pa.  St.  600,  49  Atl. 
302;  Catlin  v.  Wilcox  Silver  Plate  Co.,  123  Ind.  477,  24  N.  E.  250, 

18  Am.  St.  Eep.  338,  8  L.  E.  A.  62.  That  the  same  protection  is  often 
extended  to  such  creditors,  attaching  after  the  appointment  of  the 
foreign  receiver,  see  Gerding  v.  East  Tennessee  L.  Co.,  185  Mass.  380^ 
70  N.  E.  206,  and  cases  cited;  cf.  next  section. 


(  253  EQUITABLE    REMEDIES.  444 

persons  under  the  equal  protection  of  the  law  clause  in 
the  federal  constitution.  Even  where  the  attaching 
creditor  is  a  resident  or  citizen  of  the  state  where  the 
receiver  is  appointed,  there  would  seem  to  be  no  reason 
on  principle  why  he  should  not  be  allowed  to  retain  his 
preference  by  the  courts  of  the  state  of  the  attachment,^® 
unless  he  has  been  enjoined  by  the  state  of  his  citizen- 
ship in  the  order  appointing  a  receiver  from  maintain- 
ing the  attachment  proceeding.  If  such  injunction  has 
been  issued — and  it  is  well  settled  that  the  appointing 
court  may  enjoin  those  subject  to  its  jurisdiction  from 
prosecuting  attachments  in  foreign  states — the  court  of 
the  state  in  which  the  attachment  was  issued  would 
doubtless  have  power  to  suspend  proceedings  until  the 
court  in  w^hich  the  receiver  w^as  appointed  could  en- 
force its  orders,  and,  in  a  spirit  of  comity,  such  would 
probably  be  the  procedure.^ ^ 

§  253.  Rights  of  Foreign  Receiver  Against  Subsequent  At- 
taching Creditors. — Difficult  questions  often  arise  where 
the  attaching  creditors  in  the  local  state  have  attached 
after  the  appointment  of  the  receiver  in  the  domiciliary 
state.  If  the  receiver  has  obtained  possession,  his  pos- 
session should  be  protected.  His  possession  is  in  the 
nature  of  a  property  right,  and  is  held  so  to  be  almost 
universally.^^     But  where  the  receiver  has  not  yet  col- 

16  Hibernia  National  Bank  v.  Lacombe,  84  N.  Y.  367,  38  Am.  Rep. 
518. 

17  Avery  v.  Boston  Safe  Deposit  &  T.  Co.,  72  Fed.  700.  In  Ameri- 
can "Waterworks  Co.  v.  Farmers'  L.  &  T,  Co.,  20  Colo.  203,  46  Am. 
St.  Rep.  285,  37  Pac.  269,  25  L.  R.  A.  338,  the  court,  on  motion  of 
a  foreign  receiver,  granted  a  motion  to  dismiss  a  writ  of  error 
brought  by  the  corporation's  oflScers,  where  the  court  of  appointment 
had  enjoined  them  from  taking  such  proceedings. 

18  Chicago  etc.  Ry.  v.  Keokuk  etc.  Packet  Co.,  108  111.  317,  43 
Am.  Rep.  557,  where  the  receiver  appointed  in  the  foreign  state 
brought  into  Illinois  a  vessel  which  was  attached  by  local  creditors. 


445  FOREIGN    EECEIVEES.  §  253 

lected  tlie  fund  or  taken  the  property  into  his  posses- 
sion, and  creditors  or  others  have  obtained  rights  or 
liens  upon  the  property  or  fund  in  the  state  where  it  is 
situated,  some  distinctions  must  be  observed.  If  the 
appointment  of  the  receiver  is  involuntary,  especially 
in  aid  of  a  statutory  judicial  proceeding,  the  prevailing 
doctrine  seems  to  be  that,  where  the  rights  of  domestic 
creditors  are  involved,  the  assignment  will  not  be  rec- 
ognized outside  of  the  jurisdiction  of  appointment.^* 
But  if  the  appointment  be  by  voluntary  act,  as  on  the 
dissolution  of  a  corporation  on  its  own  petition,  or  if  a 
common-law  assignment  be  made  to  the  receiver,  the  as- 
signment will  be  recognized  elsewhere.^^  In  the  latter 
case,  therefore,  if  the  foreign  receiver's  title  be  rec- 

The  foreign  receiver  was  allowed  to  replevy  the  vessel:  Eobertson 
V.  Staed,  135  Mo.  135,  58  Am.  St.  Kep.  569,  36  S.  W.  610,  33  L.  K. 
A.  203,  where  the  receiver  was  appointed  in  Mexico;  Osgood  v,  Ma- 
guire,  61  N.  Y.  524;  Merchants'  etc.  Bank  v.  McLeod,  38  Ohio  St. 
174;  Bagby  v.  Atlantic  etc.  E.  E.  Co.,  86  Pa.  St.  291;  Pond  v.  Cooke, 
45  Conn.  126,  29  Am.  Eep.  668;  Merchants'  Nat.  Bank  v.  Penn. 
Steel  Co.,  57  N.  J.  L.  336,  30  Atl.  545.  The  case  of  Humphreys 
V.  Hopkins,  81  Cal.  551,  15  Am.  St.  Eep.  176,  22  Pac.  892,  6  L.  R. 
A.   792,  is  out  of  the  line  of  authority, 

19  Security  Trust  Co.  v.  Dodd,  Mead  &  Co.,  173  U.  S.  624,  19  Sup. 
Ct.  545,  43  L,  ed.  835;  Cole  v.  Cunningham,  133  U.  S.  107,  129,  10  Sup. 
Ct.  269,  33  L.  ed,  538;  Catlin  v.  Wilcox  Silver  Plate  Co.,  123  Ind. 
477,  18  Am.  St.  Eep.  338,  24  N.  E.  250,  8  L.  E.  A.  62;  Gray  v.  Cov- 
ert, 25  Ind.  App.  561,  81  Am.  St.  Eep.  117,  58  N.  E.  731;  Ward  v. 
Connecticut  Pipe  Co.,  71  Conn.  345,  71  Am.  St.  Eep.  207,  41  Atl.  1057, 
42  L.  E.  A.  706;  Gilbert  v.  Hewetson,  79  Minn.  326,  79  Am.  St,  Eep, 
486,  82  N,  W,  655.  In  Eeynolds  v.  Adden,  136  U.  S.  348,  354,  10 
Sup.  Ct,  843,  34  L.  ed.  360,  the  supreme  court  of  the  United  States 
eays:  "When  the  transfer  of  a  debtor's  property  is  the  result  of  a 
judicial  proceeding,  there  is  no  provision  of  the  constitution  which 
requires  the  courts  of  another  state  to  carry  it  into  effect,  and  as 
a  general  rule  no  state  court  will  do  this  to  the  prejudice  of  the 
citizens  of  its  own  state."  See,  also,  Zacher  v.  Fidelity  Trust  etc. 
Co.,  109  Ky.  441,  59  S.  W.  493;  Zacher  v.  Fidelity  Trust  etc.  Co.,  106 
Fed.  593,  45  C,  C.  A.  480. 

20  In  addition  to  cases  cited  in  last  note,  see  note  in  23  L.  E.  A. 
33. 


•§   •:r)4  EQUITABLE    KEMEDIE3.  446 

ognized,  those  who  attach  after  such  assignment  have 
nothing  to  levy  upon,  and  the  receiver's  title  will  pre- 
vail over  the  attaching  creditor's.^^  This  is  almost  uni- 
formly held  to  be  the  law  in  cases  where  the  attaching 
creditors  are  not  domestic  creditors,  but  many  states  pro- 
tect the  domestic  creditor,  though  his  lien  be  subsequent 
to  the  assignment,  without  recognizing  the  distinction 
between  voluntary  and  involuntary  assignments.^^  If 
the  assignment  and  appointment  were  involuntary,  it  is 
uniformly  held  that  the  rights  of  the  attaching  creditors 
will  prevail.^* 

§  254.  Same;  As  Affected  by  Questions  of  Citizenship  or 
Residence. — In  some  of  the  cases  the  attaching  creditor 
has  been  a  citizen  of  the  state  in  which  the  foreign  re- 
ceiver was  appointed,  and  notwithstanding  the  appoint- 
ment of  the  receiver  in  the  creditor's  home  state,  has  at- 
tached property  in  a  foreign  state.  If  he  had  been  en- 
joined from  so  proceeding,  or  had  been  a  party  to  the 

21  "A  voluntary  conveyance  of  goods  made  by  the  owner  at  his 
domicile  in  a  form  which  is  sufficient  there  and  also  at  common  law, 
is  effectual  to  transfer  the  title,  although  they  may  be  at  the  time  in 
another  state,  unless  the  statutes  or  the  local  policy  of  that  state 
forbid":  Ward  v.  Connecticut  Pipe  Mfg.  Co.,  71  Conn.  345,  71  Am. 
St.  Eep.  207,  41  Atl.  1057,  42  L.  R,  A.  706;  Weller  v.  J.  B.  Pace 
Tobacco  Co.,  2  N,  Y.  Supp.  292,  in  which  a  foreign  receiver  was  given 
preference  o^er  a  subsequent  domestic  attaching  creditor. 

22  Lackmann  v.  Supreme  Council   (1904),  142  Cal.  22. 

23  Gray  v.  Covert,  25  Ind.  App,  561,  81  Am,  St.  Rep.  117,  58  N.  E. 
731;  Ward  v,  Connecticut  Pipe  Mfg.  Co.,  71  Conn.  345,  71  Am.  St. 
Rep.  207,  41  Atl.  1057,  42  L,  R.  A.  706;  Barth  v.  Backus,  140  N.  Y. 
230,  37  Am.  St,  Rep.  545,  35  N.  E.  425,  23  L.  R.  A.  47;  Catlin  v.  Wil- 
cox Silver  Plate  Co.,  123  Ind.  477,  18  Am.  St.  Rep.  338,  24  N.  E. 
250,  8  L.  R.  A.  62;  Thum  v.  Pingree,  21  Utah,  348,  61  Pac.  18;  The 
Willamette  Valley,  66  Fed.  565,  13  C.  C.  A.  635;  Hibernia  Nat. 
Bank  v.  Lacombe,  84  N.  Y.  367,  38  Am.  Rep.  518;  Oilman  v.  Ket- 
cham,  84  Wis.  60,  36  Am.  St.  Eep.  899,  54  N.  W.  395,  23  L.  R.  A. 
52;  Choctaw  Coal  &  M.  Co.  v.  Williams-Echols  Dry  Goods  Co.  (Ark.), 
^7  8.  W.  €32;  Gerding  v.  East  Tenn.  L.  Co.,  185  Mass.  380,  70  N.  E. 
206. 


447  FOREIGN    RECEIVERS.  §  255 

proceeding  in  which  the  receiver  was  appointed — in  this 
case  even  though  not  a  citizen  of  the  state  of  appoint- 
ment— and  has  attempted  to  gain  a  priority  by  attach- 
ing before  the  receiver  could  get  possession,  he  will  not 
only  be  adjudged  guilty  of  a  contempt  by  the  court  of 
appointment,  but  his  attachments  will  not  be  allowed 
to  prevail  in  the  other  jurisdiction.^^  If  no  injunction 
had  been  issued,  however,  even  though  the  attaching 
creditor  was  not  only  subject  to  the  jurisdiction  of  the 
appointing  court  as  a  citizen  or  resident,  but  also  had 
actual  notice  of  the  appointment  of  the  receiver,  some 
courts  permit  him  to  enter  into  a  race  with  the  receiver 
to  get  possession  and  reward  his  diligence  by  holding 
that  while  he  is  on  the  same  footing  with  other  persons, 
the  receiver  appointed  in  involuntary  proceedings  will 
not  be  recognized  so  as  to  prejudice  the  diligent  cred- 
itor's rights.  It  is  submitted  that  the  better  rule  is 
with  those  courts  which  deny  priority  to  a  creditor  at- 
taching under  such  circumstances.^^ 

§  255.  Actions  by  Foreign  Receiver  not  Dependent  on 
Comity;  (1)  Property  Rights — Some  confusion  has  arisen 
from  the  failure  on  the  part  of  certain  courts  to  recog- 

24  Gilman  v.  Ketcham,  84  Wis.  60,  36  Am.  St.  Rep.  899,  54  N. 
W.  395,  23  L.  R.  A,  52;  Cole  v.  Cunningham,  133  U.  S.  107,  129,  10 
Sup.  Ct.  269,  33  L.  ed.  538;  Farmers'  L.  &  T.  Co.  v.  Bankers' 
Tel.  Co.,  148  N.  Y.  315,  51  Am.  St.  Rep.  690,  42  N.  E.  707,  31  L.  R. 
A.  403;  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y,  367,  38  Am.  Rep. 
518;  Bacon  v.  Home,  123  Pa.  St.  452,  16  Atl.  794,  2  L.  R,  A.  355; 
Schindelholz  v,  CuUum,  55  Fed.  885,  5  C.  C.  A.  293;  Earth  v.  Backus, 
140  N.  Y.  230,  37  Am.  St.  Rep.  545,  35  N.  E.  425,  23  L.  R.  A.  47; 
Rhawn  v.  Pierce,  110  111.  350,  51  Am.  Rep.  691;  Faulkner  v.  Hyman, 
142  Mass.  53;  Castleman  v.  Templeman,  87  Md.  546,  67  Am.  St. 
Rep.   363,   40   Atl.   275,  41   L.   R.   A.   367. 

25  Hibernia  Nat.  Bank  v.  Lacombe,  84  N.  Y.  367,  38  Am.  Rep. 
518;  Barth  v.  Backus,  140  N.  Y.  230,  37  Am.  St.  Rep.  545,  35  N.  B. 
425,  23  L.  R.  A.  47;  Gilman  v.  Ketcham,  84  Wis.  60,  36  Am.  St.  Rep. 
699,  54  N.  W.  395,  23  L.  R.  A.  52;  and  cases  cited  in  last  note. 


f  255  EQUITABLE   REMEDIES.  **» 

nize  the  difference  between  acts  of  the  receiver  which 
are  permitted  by  comity  and  acts  which  give  rise  to 
rights  in  the  receiver.  Of  the  latter  class  are  the  as- 
signments already  mentioned  where  the  receiver  is 
clothed  with  the  legal  title  to  the  assets  of  the  corpora- 
tion or  person  whom  he  represents.  In  such  cases  he 
sues  in  the  foreign  jurisdiction  not  by  reason  of  the 
comity  of  the  state,  but  as  a  matter  of  right.  It  mat- 
ters not  whether  the  thing  was  in  possession  or  a 
chose  in  action;  the  assignee  or  receiver  who  has  been 
invested  with  the  title  should,  on  principle,  have  the 
right,  aside  from  comity,  to  sue  on  his  legal  title  in 
any  state  of  the  Union,  The  owner  of  the  thing  has  a 
right  to  transfer  it,  and  such  transfer  passes  title.  Not 
so  with  a  judicial  transfer  which  owes  its  force  to  a 
statute,  the  effect  of  which  can  only  be  carried  out  by 
foreign  states  through  the  exercise  of  comity.  The 
modern  cases  recognize  the  difference  and  hold  that 
a  receiver  who  is  in  effect  a  trustee  or  assignee  may 
sue  in  his  own  name.  "The  effect  of  such  a  transfer 
on  goods  in  another  state  is  not  to  be  determined 
simply  by  the  rule  of  comity  which  is  applicable  to 
extra-territorial  assignments  by  operation  of  law,  but 
rests  on  the  general  principles  of  jurisprudence  as  to 
the  right  of  every  one  to  dispose  of  what  he  owns."^^ 

26  Baldwin,  J.,  in  Ward  v.  Connecticut  Pipe  Mfg.  Co.,  71  Conn.  345, 
71  Am.  St.  Rep.  207,  41  Atl.  1057,  42  L.  R.  A.  706.  Where  the  receiver 
is  practically  an  assignee  or  trustee  he  may  sue  in  his  own  name; 
Howarth  v.  Lombard,  175  Mass.  570,  56  N.  E.  888,  49  L.  E.  A.  301; 
Cushing  V.  Perot,  175  Pa.  St.  66,  52  Am.  St.  Eep.  835,  34  Atl.  447,  34 
L.  E.  A.  737;  Merchants'  National  Bank  v.  Northwestern  Mfg.  etc. 
Co.,  48  Minn.  349,  51  N.  W.  117;  American  Nat.  Bank  v.  National 
Ben.  etc.  Co.,  70  Fed.  420;  Failey  v,  Talbee,  55  Fed.  892;  Avery  v. 
Boston  S.  D.  &  T.  Co.,  72  Fed.  700;  Homer  v.  Barr  Pumping  En- 
gine Co.,  180  Mass.  163,  91  Am.  St.  Eep,  269,  61  N.  E.  883;  Buswell 
V.  Order  of  Iron  Hall,  161  Mass.  224,  36  N.  E.  1065,  23  L.  E.  A.  846; 
Howarth  v.  Angle,  162  N,  Y.  179,  56  N,  E,  489,  47  L,  E.  A.  725. 


44S>  FOREIGN   RECEIVERS.  S§  256,  257 

§  256.  Same;  (2)  Rights  by  Contract. — Another  case  in 
which  the  receiver  maintains  the  action  not  on  princi- 
ples of  comity,  but  on  grounds  of  right  is  where  the  de- 
fendant has  by  contract  assented  to  the  appointment 
of  the  receiver,  in  the  event  of  dissolution  of  a  corpora- 
tion, €.  g.,  of  which  he  is  a  stockholder,  or  the  winding 
up  of  an  insurance  company  in  which  he  is  a  policy 
holder.  In  such  cases  the  right  of  the  receiver  to  sue 
depends  upon  the  promise  of  the  subscriber  or  policy 
holder  "to  pay  the  sum  in  question  to  any  receiver  prop- 
erly appointed."  The  action  is  ^'founded  not  on  the 
right  of  a  foreign  receiver  to  sue  upon  demands  in  favor 
of  the  party  he  may  represent,  but  on  the  right  of  a 
substituted  promisee  to  sue  a  promisor  whose  contract 
provided  for  such  substitution."^^ 

§  257.  Power  of  Court  of  Appointment  Over  Receiver 
and  Other  Parties. — Several  cases  are  reported  where  a 
court  of  equity  has  appointed  a  receiver  of  land  situ- 
ated in  a  foreign  state.  There  is  no  doubt  in  such  cases 
but  that  the  court  can  enforce  its  orders  against  those 
who  are  subject  to  its  jurisdiction,  either  territorially 
or  by  having  submitted  themselves  to  the  court'  in  the 
proceeding  in  which  the  receiver  has  been  appointed. 
The  court,  of  course,  has  control  of  its  receiver  wherever 
he  may  act,  and  in  the  same  manner  it  can  control  the 
parties  to  the  action  and  interveners.  The  court  often 
enjoins  parties  from  proceeding  with  actions  pending 
in  a  foreign   court.     In   such   case,   the  foreign  state 

27  Baldwin,  J.,  in  Fish  v.  Smith,  73  Conn.  377,  84  Am.  St.  Rep. 
161,  47  Atl.  711,  713;  Wheeler  v.  Dime  Savings  Bank,  116  Mich.  271, 
72  Am.  St.  Rep.  521,  74  N.  W.  496;  Relfe  v.  Rundle,  103  U.  S.  222, 
26  L.  ed.  337;  Rundle  v.  Life  Assn.  of  America,  10  Fed.  720,  4  Woods, 
94;  Taylor  v.  Life  Assn.  of  America,  13  Fed.  493;  Fry  v.  Charter 
Oak  L.  Ins.  Co.,  31  Fed.  197;  Weingartner  v.  Insurance  Co.,  32  Fed. 
314;  Hale  v.  Hardon,  95  Fed.  747,  37  C.  C.  A.  240. 
Equitable  Remedies,  VoL  1—29 


§  237  E^UiTAiJLE    EEMEDIES.  450 

should  enforce  the  injunction  issued  in  the  domiciliary 
state  by  refusing  to  proceed  with  the  litigation  or 
ordering  proceedings  dismissed.^*  In  a  case  in  Michi- 
gan, the  supreme  court  of  that  state  gave  effect  to  a  sale 
by  a  receiver  appointed  in  a  foreign  state  of  laud  lying 
in  Michigan.^'^  The  decision  seems  conformable  Avith 
the  spirit  of  comity  that  prevails  among  the  American 
states.  No  rights  of  creditors  or  others  being  involved, 
the  court  properly  recognized  the  act  of  the  foreign 
receiver  in  selling  the  land  under  order  of  court 

28  In  Schindelholz  v.  Cullum,  54  Fed.  885,  5  C.  C.  A.  293,  Thayer,  J., 
Bays:  "Courts  which  have  appointed  receivers  over  property  situ- 
ated in  a  foreign  jurisdiction  may  either  restrain  or  punish  persona 
who  interfere  with  the  receiver's  possession  of  such  property;  even 
though  the  interference  consists  in  attaching  it  under  process  ob- 
tained from  some  court  in  the  foreign  state In  all  these  cases, 

however,  the  person  proceeded  against  for  interfering  with  the  re- 
ceiver's constructive  possession  of  property  located  in  a  foreign  ju- 
risdiction was  either  a  party  to  the  litigation  in  which  the  receiver 
had  been  appointed,  or  in  privity  with  a  party,  or  was  otherwise 
subject  to  the  jurisdiction  of  the  court  by  virtue  of  his  residence 
or  citizenship."  See,  also,  Mercantile  Ins.  Co.  v.  River  Plate  etc. 
Agency  Co.,  [1892]  2  Ch.  303;  Lord  Cranstown  v.  Johnston,  3 
Ves.  170;  Cole  v.  Cunningham,  133  U.  S.  107,  129,  10  Sup.  Ct.  269, 
33  L.  ed.  538;  Chesapeake  etc,  Ey.  Co.  v.  Swayze,  60  N.  J.  Eq.  417, 
47  Atl.  2*8;  Chafee  v.  Quidnick  Co.,  13  R.  I.  442;  Sercomb  v.  Catlin, 
128  111.  5o6,  15  Am.  St.  Rep.  147,  21  N.  E.  606;  Holbrook  v.  Ford, 
153  111.  633,  46  Am.  St.  Rep.  917,  39  N.  E.  1091,  27  L.  R.  A.  324.  A 
receiver  acting  beyond  the  territorial  jurisdiction  of  the  court  is 
still  subject  to  its  orders:  Guarantee  T.  &  S.  D.  Co.  v.  P.  E.  &  N.  E. 
R.  E.,  69  Conn.  709,  38  Atl.  792,  38  L.  R.  A.  804.  A  receiver  may 
be  appointed  in  a  creditor's  bill  or  in  proceedings  supplementary  to 
execution,  and  the  debtor  who  is  within  the  jurisdiction  of  the  court 
may  be  required  to  convey  land  outside  of  the  state  to  such  receiver; 
Mitchell  V.  Bunch,  2  Paige,  606,  22  Am.  Dec.  669;  Bailey  v.  Ryder, 
10  N.  Y.  363;  Towne  v.  Campbell,  35  Minn.  231,  28  N.  W.  254;  Tom- 
linson  etc.  Co.  v.  Shatto,  34  Fed.  380.  In  American  Waterworks 
Co.  V.  Farmers'  L.  &  T.  Co.,  20  Colo.  203,  46  Am.  St.  Rep.  285,  37 
Pae.  269,  25  L.  R.  A.  338,  a  writ  of  error  was  dismissed  where  the 
corporation  prosecuting  the  writ  had  been  enjoined  in  a  foreign  court 
appointing  a  receiver  of  the  corporation,  from  prosecuting  the  ac- 
tion. 

89  Ihinlap  v.  Byers,  110  Mich.  109,  67  N.  W.  1067. 


451  ANCILLARY    RECEIVERS.  §  258 

§  258.  Ancillary  Receivers;  Appointment. — Instead  of  de- 
livering to  the  foreign  receiver  the  property  or  fund, 
the  courts  of  the  state  may  appoint  an  ancillary  re- 
ceiver for  the  purpose  of  taking  charge  of  such  fund 
or  property.^"  This  will  be  done  where  it  is  necessary 
to  protect  the  rights  of  resident  creditors,  or  of  non- 
residents who  have  attached  the  property  or  fund.^^ 
But  it  is  entirely  discretionary  with  the  court  whether 
an  ancillary  receiver  will  be  appointed  or  not.^^  Al- 
though certain  courts  have  permitted  such  appointment 
on  an  ex  parte  application,^^  the  proper  practice  is 
to  file  an  independent  bill  showing  grounds  for  the  ap- 
pointment of  such  receiver.  Where  the  property  is 
situated  in  several  states,  as  a  railroad,  the  federal 
courts  have  adopted  the  rule  ex  comitate  that  the  pri- 
mary receiver  will  be  appointed  ancillary  receiver  in 
the  several  districts  through  which  the  railroad  passes, 
in  this  way  artificially  providing  for  a  harmony  which 
could  as  well  be  preserved  on  the  general  principles  of 
comity  without  the  creation  of  ancillary  receivership.^* 

30  Williams  v.  Hintermeister,  26  Fed.  889;  Mabon  v.  Ongley  Elec- 
tric Co.,  156  N.  Y.  196,  50  N.  E.  805;  Holbrook  v.  Ford,  153  111.  633, 
46  Am.  St.  Rep.  917,  39  N.  E.  1091,  27  L,  R.  A.  324;  Evans  v.  Pease, 
21  R.  I.  187,  42  Atl.  506;  Irwin  v.  Granite  State  Prov.  Assn.,  56  N. 
J.  Eq.  244,  38  Atl.  680;  Lewis  v.  American  Naval  Stores  Co.,  119 
Fed.  391.  The  court  of  domicile  in  all  such  cases  is  the  primarj 
court:  Southern  B.  &  L.  Assn.  v.  Miller,  118  Fed.  369,  55  C.  C.  A. 
195;  and  the  ancillary  courts  must  follow  the  courts  of  primary  ju- 
risdiction, except  so  far  as  the  purposes  of  the  ancillary  receiver- 
ship are  concerned:  Farmers'  L.  &  T.  Co.  v.  Northern  Pac.  R.  R., 
72  Fed.  26. 

31  Mabon  v.  Oogley  Electric  Co.,  156  N.  Y.  196,  50  N.  E.  805. 

32  See  the  cases  cited  in  the  last  two  notes. 

33  Mercantile  Trust  Co.  v.  Kanawha  etc.  Ry.  Co.,  39  Fed.  337,  to 
the  effect  that  independent  bill  should  be  filed.  In  Piatt  v.  Phila- 
delphia etc.  Ry.  Co.,  54  Fed.  569,  the  appointment  was  granted  ft» 
parte.  In  Mabon  v.  Ongley  Electric  Co.,  156  N.  Y,  196,  50  N.  E. 
805,  it  is  held  that  the  court  will  not  appoint  an  ancillary  receiver 
on  the  mere  petition  of  the  primary  receiver. 

34  Dillon  v.  Oregon  S.  L.  etc.  Co.,  66  Fed.  622;  Central  Trust  Com' 


i  259  EQUITABLE    EEMEDIES.  45ii 

§  259.  Ancillary  Receivers;  Administration  of  the  Fund. — 
A  broad  distinction  exists  bet^yeen  the  powers  of  an- 
cillary receivers  and  those  of  primary  receivers.  So 
far  as  the  court  of  their  appointment  is  concerned,  the 
latter  are  absolutely  amenable  to  its  process,  and,  as 
we  have  seen,  the  administration  of  the  entire  fund, 
wherever  it  may  lie,  can  by  means  of  the  injunctive 
process  of  the  appointing  court,  aided  by  the  comity 
of  the  courts  of  sister  states,  be  conducted  by  the  pri- 
mary tribunal.  But  in  the  case  of  an  ancillary  receiver^ 
ex  vi  termini,  there  can  be  no  administration  of  any 
fund  lying  outside  of  the  territorial  jurisdiction  of  the 
appointing  court.  The  very  word  "ancillary"  implies^ 
a  principal,  in  whom  is  vested  the  general  administra- 
tion. Accordingly,  we  find  it  determined  that  the  court 
of  ancillary  appointment  cannot  exercise  any  control 
over  assets  in  another  state  by  means  of  injunction 
against  its  citizens  or  against  the  parties,^^  and  that 
a  judgment  rendered  against  an  ancillary  receiver 
binds  only  property  in  the  jurisdiction  of  appoint- 
ment.^® So,  also,  because  the  entire  fund  is  being  ad- 
ministered elsewhere,  claims  which  more  properly  exist 
against  the  general  estate  have  been  referred  to  the 

pany  v.  Wabash  etc.  Ey.  Co.,  29  Fed.  620;  Jennings  v,  Philadelphia 
etc.  E.  E.  Co.,  23  Fed.  569;  Young  v.  Montgomery  E.  E.  Co.,  2  Woods, 
618,  Fed.  Cas.  No.  18,166;  New  York  P.  &  0.  E.  v.  New  York  L,  E. 
etc.  E.  Co.,  58  Fed.  268;  Coltrane  v.  Templeton,  106  Fed.  370,  45  C. 
C.  A.  328;  Central  E.  Co.  v.  Farmers'  L.  &  T.  Co.,  125  Fed.  1001,  60 
C.  C.  A.  400.  In  two  cases  this  rule  was  not  followed,  by  Judgd 
Gresham  in  Atkins  v.  Wabash  Ey.  Co.,  29  Fed.  162,  and  by  Judge 
Simonton  in  Phinzy  v.  Augusta  E.  E.  Co.,  56  Fed.  273.  The  same 
rule  was  followed  in  Port  Eoyal  etc.  Ey.  Co.  v.  King,  93  Ga.  63,  19 
S.  E.  809,  24  L,  E.  A.  730,  as  between  state  courts, 

35  Holbrook  v.  Ford,  153  111.  633,  46  Am.  St.  Eep.  917,  39  N.  E. 
1091,  27  L.   E.  A.   324. 

36  Eeynolds  v.  Stockton,  140  U.  S.  2-54,  11  Sup.  Ct.  773,  35  L.  ed. 
464. 


453  ANCILLARY    EECEIVEES.  i  260 

original  court.^'^  Of  course,  the  ancillary  receiver  in 
managing  the  estate  in  his  possession  may  do  acts  in 
other  jurisdictions,  such  as  making  contracts  to  carry 
on  the  branch  of  the  business  under  his  management, 
or  the  carrying  of  cars  belonging  to  the  division  of  a 
railroad  of  which  he  is  receiver,  giving  rise  to  jural 
relations.  Where  such  relations  arise  they  will  be  re- 
spected, and  the  ancillary  receiver  may  have  proper 
remedies  even  outside  the  state  of  his  appointment  to 
protect  him  in  doing  said  acts,  in  accordance  with  the 
principle  that  his  possession  and  vested  rights  will  be 
protected  everywhere  as  property  rights,  just  as  any 
bailee's  possession  or  promisee's  right  is  protected.^* 

§  260.  Ancillary  Receivers;  Administration  of  the  Fund; 
How  Far  Conclusive  on  Primary  Receiver "Where  a  re- 
ceiver or  administrator  or  other  custodian  of  an  estate 
is  appointed  by  the  courts  of  one  state,  the  courts  of 
that  state  reserve  to  themselves  full  and  exclusive  ju- 
risdiction over  the  assets  of  the  estate  within  the  limits 
of  the  state.  W^hatever  orders,  judgments  or  decrees 
may  be  rendered  by  the  courts  of  another  state  in  re- 
spect of  so  much  of  the  estate  as  is  Avithin  its  limits, 
must  be  accepted  as  conclusive  in  the  courts  of  primary 
jurisdiction;  and  whatever  matters  are  permitted  by 
the  courts  of  primary  jurisdiction  to  be  litigated  in  the 
courts  of  another  state  come  within  the  same  rule  of 
conclusiveness.  Beyond  this,  the  proceedings  of  the 
courts  of  a  state  in  which  ancillary  administration  is 
held  are  not  conclusive  upon  the  administration  in  the 
courts  of  the  state  in  which  primary  administration  is 

37  Central  Trust  Co.  v.  East  Tenn.  etc.  E,  Co.,  30  Fed.  89-5;  Clyde 
V.  Eichmond  etc.  E,  E.  Co.,  56  Fed.  539. 

38  Guarantee  T.  &  S.  D.  Co.  v.  P.  E.  &  N.  E.  E.  E.,  69  Conn.  709, 
38  L.  E.  A.  804,  38  Atl.  792;  and  cases  cited  mpra,  §'  255. 


I  281  EQUITABLE    REMEDIES.  454 

had."'*  Neither  the  party  whose  estate  is  being  ad- 
ministered, nor  the  primary  receiver  who  submits  to 
the  foreign  court  without  leave  from  the  court  of  ap- 
pointment, can  confer  a  jurisdiction  on  the  ancillary 
court,  by  voluntary  appearance,  because  the  jurisdiction 
over  the  subject  matter  is  absent.'*®  The  determination 
of  the  ancillary  court  on  questions  of  local  law,  e.  g., 
taxation,  are,  of  course,  binding  on  the  primary  court.*^ 

§  261.  Ancillary  Receivers;  Surrender  of  Fund — Although 
it  has  been  held  that  the  court  of  ancillary  adminis- 
tration will  provide  that  the  citizens  of  its  state  be 
paid  in  full,  before  the  balance  is  transmitted  to  the 
primary  receiver/^  it  is  submitted  that  no  rule  can  be 
supported  which  does  not  put  other  persons  on  an  equal- 
ity in  regard  to  the  administration.^^  But  the  require- 
ment that  all  shall  have  the  equal  protection  of  the 
law  does  not  prevent  the  court  of  ancillary  administra- 
tion from  demanding  security  from  the  primary  re- 
ceiver for  the  equal  treatment  of  its  own  citizens  in 
the  final  distribution,  as  a  condition  of  the  surrender 
of  the  funds  in  its  possession.*^  And  it  is  proper  that 
the  court  of  ancillary  jurisdiction  should  provide  for 
the  retention  of  a  fund  required  by  the  laws  of  the 
state  as  a  condition  precedent  to  an    insurance    com- 

89  Brewer,  J.,  in  Reynolds  v.  Stockton,  140  U.  S.  254,  272,  11  Sup, 
Ct.  773,  35  L.  ed.  464. 

40  Eeynolda  v.  Stockton,  supra. 

41  Fletcher  v.  Harney  Peak  Tin  Min.  Co.,  84  Fed.  555. 

42  Sands  v.  Greeley,  83  Fed.  772. 

43  Blake  V.  McClung,  172  U.  S.  239,  19  Sup.  Ct.  16S,  43  L,  ed. 
432;  People  v.  Granite  State  Provident  Assn.,  161  N.  Y.  492,  55  N. 
B.  1053. 

44  People  V.  Granite  State  Provident  Assn.,  161  N.  Y.  492,  55  N. 
X.  1053;  Baldwin  v,  Hosmer,  101  Mich.  119,  59  N.  W.  432,  25  L.  R. 
A.  739;  Buswell  v.  Order  of  Iron  Hall,  161  Mass.  224,  36  N.  E.  1065, 
IB  L.  R.  A.  846. 


455  ANCILLAEY    EECEIVEES.  i  261 

pany's  transacting  business  in  the  state,  until  all  do- 
mestic creditors  and  policy-holders  should  be  paid  in 
full — the  fund  being  primarily  devoted  to  that  pur- 
pose."*^ In  general,  it  may  be  said  that  the  court  of 
ancillary  jurisdiction  will  not  surrender  possession  of 
the  funds  in  its  control  to  the  primary  receiver  until 
satisfied  that  those  for  whom  the  ancillary  administra- 
tion was  had — the  citizens  and  residents  of  the  state, 
and  creditors  invoking  its  laws — will  be  fully  protected 
if  the  fund  is  surrendered.^®  It  may,  if  it  prefers,  ro 
tain  the  fund  and  pay  its  citizens  a  proportionate 
amount  of  their  debts,  when  such  proportion  is  deter- 
mined.^' 

45  People  V.  Granite  State  Provident  Assn.,  161  N.  Y.  492,  55  N. 
E.  1053. 

46  Hunt  V.  Columbian  Ins.  Co.  (Me,),  92  Am.  Dec.  592;  Fawcett 
V.  Order  of  Iron  Hall,  64  Conn.  170,  29  Atl.  614,  24  L.  R.  A.  815;  and 
eases  cited  in  preceding  notes. 

47  Fawcett  v.  Order  of  Iron  Hall,  supra;  Failey  v.  Fee,  83  Md. 
83,  55  Am.  St.  Rep.  326,  34  Atl.  839,  32  L.  ed.  311;  Frowert  v.  Blank, 
«)6  Pa.  St.  299,  54  Atl.  1000. 


S  262  EQUITABLE  REMEDIES.         ►  466 


CHAPTER  XII. 


INJUNCTION'S ;  GENERAL  PRINCIPLES— INJUNC- 
TION TO  PROTECT  EQUITABLE  ESTATES  AND 
INTERESTS. 

ANAI.YSIS. 

§  262.  General  nature  and  object — Abstract  of  statutes. 

§  263.  Fundamental  principle. 

§  264.  Preliminary  or  interlocutory  injunctions. 

§§  265-269.  Injunctions   to    protect   purely   equitable   estates   or  in- 
terests, and  in  aid  of  purely  equitable  remedies. 

§  266.  Instances;  to  restrain  breaches  of  trust. 

§  267.  To  restrain  violation  of  confidence. 

§  268.  Same;   disclosure  of  trade  secrets. 

§  269.  Other  instances. 

§  262.  General  Nature  and  Object — Abstract  of  Statutes. 
"The  remedy  of  injunction  was  undoubtedly  borrowed 
by  the  chancellors  from  the  'interdicts'  of  the  Roman 
law.^     An  injunction  may  be  either  a  final  remedy  ob- 

1  "As  to  'interdicts,' see  Gains' Inst.,  lib.  4,  §§  138-170;  Poste'sed., 
492-520;  Just.  Inst.,  lib.  4,  tit.  15,  §§  1-8;  Sandars'  ed.,  1st  Am.  ed., 
58,  570-580.  The  general  definition  as  given  by  Gaius  (Id.,  §  139)  is 
as  follows:  'Under  certain  circumstances,  chieily  when  possession  or 
qiuisi  possession  [i.  e.,  possession  of  a  servitude]  is  in  dispute,  ths 
first  step  in  the  legal  proceedings  is  the  interposition  of  the  praetor 
or  pro-consul,  who  coinmands  some  performance  or  forbearance;  which 
commands,  formulated  in  solemn  terms,  are  called  interdicts.'  The 
n  ost  general  formula  was  ^  rim  fieri  veto,  exhibcus,  restituas,'  'I  forbid 
you  to  use  violence,  you  must  produce,  you  must  restore,'  There  were 
thus  three  distinct  species  of  interdicts:  1.  The  prohibitory,  where 
the  defendant  was  commanded  to  refrain  or  desist  from  some  act, 
answering  to  our  ordinary  injunction;  2.  The  exhibitory,  where  the 
defendant  was  commanded  to  produce  and  exhibit  something  in  hia 
possession — exhibcas,  which  does  not  answer  to  any  kind  of  injunction, 
but  has  some  analogies  with  certain  common-law  writs;  3.  The  re- 
storative, where  the  defendant  was  commanded  to  restore  something 
to  its   original  position,  clearly  resembling  in  its  effect   our   manda- 


457  INJUNCTIONS;    GENEEAL    PEINCIPLES.  §  262 

tained  by  a  suit,  or  a .  preliminary  and  interlocutory 
relief  granted  while  the  suit  is  pending.  In  the  first 
case  it  is  a  decree,  in  the  second,  an  order  or  writ. 
Whatever  be  its  form,  decree  or  order,  the  remedy  by  or- 
dinary injunction  is  wholly  preventive,  prohibitory,  or 
protective.  The  same  is  true  in  theory  and  in  form  of  a 
mandatory  injunction,  which  always  by  its  language 
prohibits  the  continuance  of  an  act  or  of  a  structure, 
a.1  though  in  effect  and  in  its  essential  nature  it  is 
wholly  restorative,  and  compels  the  defendant  to  restore 
the  thing  to  its  original  situation.  While  injunctions 
may  thus  be  final,  or  preliminary  and  ancillary  to  other 
final  relief,  they  all  depend  upon  the  same  general  prin- 
ciples, doctrines,  and  rules  which  determine  and  regu- 
late the  exercise  of  the  jurisdiction  to  award  them.  In 
the  states  adopting  the  reformed  procedure,  the  codes 
contain  general  provisions  describing  the  cases  in 
which  an  injunction  may  be  issued,  but  these  provisions 
do  not  materially  alter  the  settled  equitable  jurisdic- 
tion, except  in  reference  to  injunctions  against  actions 
or  judgments  at  law."^ 

tory  injunction.  Interdicts  were  granted  where  some  danger  was  ap- 
prehended, or  some  injury  was  being  done,  to  something  of  a  quasi 
public  character,  as  the  stopping  up  of  a  highway,  or  to  some  private 
interest  or  right.  One  of  the  most  common  occasions  of  the  inter- 
dict was  to  protect  the  plaintiff  in  his  possession  of  a  thing,  in  which 
case  the  interdict  uti  possidetis  was  used  to  protect  possession  of  land 
and  buildings,  and  the  interdict  utrubi  for  movables.  In  'the  inter- 
dict uti  possidetis,  the  defendant  was  forbidden  to  interfere  with  the 
possession  'ncc  fi,  nee  clam,  ncc  precario.'  The  granting  of  interdicts 
belonged  wholly  to  the  'extraordinary'  or  equitable  jurisdiction  of 
the  magistrate." 

2  Pom.  Eq.  Jur.,  §  1337.  In  the  following  abstract  of  statutes  the 
general  code  provisions  are  given  in  full,  for  the  purpose  of  exhibitin(T 
their  divergencies  in  details;  and  reference  is  also  made  to  the  most 
important  legislation  authorizing  injunction  in  special  cases.  In  some 
states  injunctions  for  an  enormous  variety  of  purposes  are  authorized 
by  statute.  For  a  tabulation  of  the  contents  of  these  statutes  men- 
tioned below,  see  the  index  to  this  work. 


I  262  EQUITABLE   EEMEDIEa  45S 

Alabama.— €iv.  Code,  1896,  SS  784-798.  Chiefly  matters  of  prac« 
tiee. 

8  2580:  May  issue  to  restrain  insolvent  insurance  companies  from 
doing  business. 

§  838:  An  injunction  pendente  lite  may  issue  to  restrain  waste  of 
property  by  Intemperate  person. 

§  2537:  In  cases  of  voluntary  separation  of  husband  and  wife 
where  application  is  made  for  custody  of  children,  court  may  grant 
injunction  pendente  lite  to  insure  safety  and  well-being  of  wife  and 
children. 

Arizona.— Rev.  Stats.  1901,  §§  2742-2763. 

S  2742:  "Judges  of  the  district  courts  may,  either  in  term  time 
or  vacation,  grant  writs  of  injunction,  returnable  to  said  courts,  in 
the  following  cases: 

**1.  Where  it  shall  appear  that  the  party  applying  for  such  writ 
is  entitled  to  the  relief  demanded,  and  such  relief  or  any  part  thereof 
requires  the  restraint  of  some  act  prejudicial  to  the  applicant. 

"2.  Where,  pending  litigation,  it  shall  be  made  to  appear  that  a 
party  is  doing  some  act  respecting  the  subject  of  litigation,  or 
threatens,  or  is  about  to  do  some  act,  or  is  procuring  or  suffering  the 
same  to  be  done  in  violation  of  the  rights  of  the  applicant,  which 
act  would  tend  to  render  the  judgment  ineffectual. 

"3.  In  all  other  eases  where  the  applicant  for  such  writ  may  show 
himself  entitled  thereto  under  the  principles  of  equity." 

S  2743:  No  injunction  against  judgments,  etc.,  except  to  so  much  as 
eomplainant  may  show  himself  equitably  entitled  to  be  relieved 
against,   and   costs. 

§  2744:  No  injunction  to  stay  execution  on  valid  judgment  after 
•ne  year. 

{  2745:  May  be  granted  on  complaint  or  on  affidavits. 

I  2746:  Notice  of  application. 

S  2750:  To  stay  proceedings,  must  be  returnable  and  tried  in  court 
where  proceedings  pending  or  judgment  rendered. 

§  2751:  Bond  of  complainant. 

{§  2755,  2756:  Dissolution  of  injunctions. 

{  2759:  "An  injunction  to  suspend  the  general  and  ordinary  busi- 
■683  of  a  corporation  shall  not  be  granted  except  by  the  court  or 
judge. ' ' 

§  2763:  General  principles  of  equity  apply  to,  except  where  conflict 
with  statute. 

5  3120:  In  suit  for  divorce,  wife  may  obtain  injunction  restraining 
husband  from  disposing  of  community  property,  and  of  her  sepa- 
rate property  in  his  possession. 

Arkansas.— Sandel's  &  Hill's  Stats.  1894,  §§  3774-3813. 

''5  3774:  The  writ  of  injunction  is  abolished." 


459  INJUNCTIONS;    ABSTEACT   OF   STATUTES.  §  202 

"S  3775:  An  injunction  is  a  command  to  refrain  from  a  pirticular 
net." 

"§  377G:  It  may  be  the  final  judgment  in  an  action,  or  may  be  al- 
loweil  as  a  provisional  remedy,  and  where  so  allowed  it  shall  be  by 
order." 

"§  3777:  Where  it  appears  by  the  complaint  that  the  plaintiff  is  en- 
titled to  the  relief  demanded,  and  such  relief,  or  any  part  thereof, 
consists  in  restraining  the  commission  or  continuance  of  some  act 
which  could  produce  great  or  irreparable  injury  to  the  plaintiff,  or 
where,  during  the  litigation,  it  appears  that  the  defendant  is  doing, 
or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering  to  be 
done,  some  act  in  violation  of  the  plaintiff's  rights,  respecting  the 
subject  of  the  action  and  tending  to  render  the  judgment  ineffectual, 
a  temporary  injunction  may  be  granted  to  restrain  such  act.  It  may 
jilso  be  granted  in  any  case  where  it  is  specially  authorized  by  stat- 
ute." 

"§  3778:  The  judge  of  the  circuit  court  may  grant  injunctions  and 
restraining  orders  in  all  cases  of  illegal  or  unauthorized  taxes  and 
assessments  by  county,  city  or  other  local  tribunals,  boards  or  offi- 
cers." .... 

"§  3798:  An  injunction  to  stay  proceedings  on  a  judgment  or  final 
order  of  a  court  shall  not  be  granted  in  an  action  brought  by  a  party 
seeking  the  injunction  in  any  other  court  than  that  in  which  the 
judgment  or  order  was  rendered  or  made." 

Against  illegal  municipal  taxation  and  payments: 

'*§  5169.  Any  person  owning  property  and  having  taxes  to  pay 
in  any  city  or  town  may,  upon  application  to  any  judge  or  court  hav- 
ing authority  to  grant  injunctions,  enjoin  the  collection  of  any  tax 
levied  in  such  city  or  town,  without  authority  of  law,  and  may  also 
enjoin  the  issue  or  the  payment  by  such  city  or  town  of  any  warrants, 
certificates  or  other  form  or  evidence  of  indebtedness  against  such 
city  or  town  issued  or  contracted  without  authority  of  law." 

Injunction  suspending  proceedings  on  a  judgment  or  order: 

"§  4202:  The  party  seeking  to  vacate  or  modify  a  judgment  or 
order  may  obtain  an  injunction  suspending  proceedings  on  the 
whole  or  part  thereof,  which  injunction  may  be  granted  by  the  court, 
or  any  officer  authorized  to  grant  injunctions,  upon  its  being  rendered 
probable,  by  affidavit  or  by  exhibition  of  the  record,  that  the  party 
ts  entitled  to  have  such  judgment  or  order  vacated  or  modified." 

5  4203:  Concerns  the  case  where  the  judgment  is  rendered  prema- 
turely, before  the  action  stood  for  trial;  it  may  be  suspended  although 
BO  valid  defense  to  the  action  is  shown. 

California. — Code  Civ.  Proc,  §§  525-533. 

f  525:  "An  injunction  is  a  writ  or  order  requiring  a  person  to  ro» 
frsin  from  a  particular  act," 


S  2C2  EQUITABLE    EEMEDIES.  460 

§  526:  "An  injunction  may  be  granted  in  the  following  cases: 

"1.  When  it  appears  by  the  complaint  that  the  plaintiff  is  entitled 
to  the  relief  demanded,  and  such  relief,  or  any  part  thereof,  consists 
in  restraining  the  commission  or  continuance  of  the  act  complained 
of,  either  for  a  limited  period  or  perpetually, 

"2.  When  it  appears  bj^  the  complaint  or  affidavit  that  the  commis- 
Bion  or  continuance  of  some  act  during  the  litigation  would  produce 
waste,  great  or  irreparable  injury  to  the  plaintiff. 

"S.  When  it  appears  during  the  litigation  that  the  defendant  is 
doing,  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering  to 
be  done,  some  act  in  violation  of  the  plaintiff's  rights,  respecting  the 
subject  of  the  action,  and  tending  to  render  the  judgment  ineffectual." 

Nuisance  may  be  enjoined,  Code  Civ.  Proc,  §  731:  "Anything 
which  is  injurious  to  health,  or  indecent  or  offensive  to  the  senses, 
or  an  obstruction  to  the  free  use  of  property,  so  as  to  interfere  with 
the  comfortable  enjoyment  of  life  or  property,  is  a  nuisance,  and  the 
subject  of  an  action.  Such  action  may  be  brought  by  any  person 
whose  property  is  injuriously  affected,  or  whose  personal  enjoyment  is 
lessened  by  the  nuisance;  and  by  the  judgment,  the  nuisance  may  be 
enjoined  or  abated,  as  well  as  damages  recovered." 

Waste  during  foreclosure  or  after  execution  sale.  Code  Civ,  Proc, 
§  745:  "The  court  may  by  injunction,  on  good  cause  shown,  restrain 
the  party  in  possession  from  doing  any  act  to  the  injury  of  real  prop- 
erty during  the  foreclosure  of  a  mortgage  thereon;  or,  after  a  sale 
on  execution,  before  a  conveyance." 

No  injunction  to  enforce  a  penal  law,  a  penalty  or  a  forfeiture.  Civ, 
Code,  §  3369:  "Neither  specific  nor  preventive  relief  can  be  granted 
to  enforce  a  penal  law,  except  in  a  case  of  nuisance,  nor  to  enforce 
a  penalty  or  forfeiture  in  any  case." 

"Preventive  relief,"   Civ.   Code,   §§   3420-3423. 

§  3420:  "Preventive  relief  is  granted  by  injunction,  provisional 
or  final." 

§  3421:  "Provisional  injunctions  are  regulated  by  the  Code  of  Civil 
Procedure." 

§■  3422:  "Except  where  otherwise  provided  by  this  title,  a  final  in 
junction  may  be  granted  to  prevent  the  breach  of  an  obligation*  ex- 
isting in  favor  of  the  applicant: 

"1.  Where  pecuniary  compensation  would  not  afford  adequate  re- 
lief; 

"2.  Where  it  would  be  extremely  difficult  to  ascertain  the  amount 
of  compensation  which  would  afford  adequate  relief; 


*  "Obligation"  is  elsewhere  defined  as  a  "legal  duty":  Civ.  Code, 
i  1427. 


461  INJUNCTIONS;   ABSTEACT   OF   STATUTES.  S  262 

"3.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity  of 
judicial  proceedings;  or, 

"4.  Where  the  obligation  arises  from  a  trust." 

S  3423:  "An  injunction  cannot  be  granted: 

"1.  To  stay  a  judicial  proceeding  pending  at  the  commencement  of 
the  action  in  which  the  injunction  is  demanded,  unless  such  restraint 
is  necessary  to  prevent  a  multiplicity  of  such  proceedings; 

"2.  To  stay  proceedings  in  a  court  of  the  United  States; 

"3.  To  stay  proceedings  in  another  state  upon  a  judgment  of  a 
court  of  that  state; 

"4.  To  prevent  the  execution  of  a  public  statute,  by  officers  of 
the  law,  for  the  public  benefit; 

"5.  To  prevent  a  breach  of  a  contract,  the  performance  of  which 
would  not  be  specifically  enforced; 

"6.  To  prevent  the  exercise  of  a  public  or  private  of&ce,  in  a  law- 
ful manner,  by  the  person  in  possession; 

"7.  To  prevent  a  legislative  act  by  a  municipal  corporation." 

Injunction  against  the  infringement  of  trade-marks  is  provided  for 
in  Political  Code,  §  3199. 

Colorado.— Eice 's  Code  of  Procedure   (1890),  §§   142-161. 

I  142:  "An  injunction  is  generally  an  order  requiring  a  person  to 
refrain  from  doing  a  particular  act,  but  where  simply  refraining  from 
doing  a  particular  act  will  not  effectuate  the  relief  to  which  the  plain- 
tiff is  entitled,  the  injunction  may  be  made  mandatory,  and  require 
Buch  acts  to  be  done  as  will  give  the  plaintiff  the  full  protection 
which  he  may  be  entitled  to." 

§  143:  When  an  injunction  may  be  granted:  substantially  the  same 
grounds  as  in  California  Code  of  Civil  Procedure  (supra),  §  526, 
with  the  addition,  "and  in  such  other  cases  as  courts  of  equity  have 
hitherto  granted  relief  by  injunction,  or  which  may  be  specially  pro- 
vided for  in  this  act." 

5  145:  Venue  of  injunctions  to  stay  proceedings  at  law. 

S  158:  Injunction  for  defendant  on  his  cross-complaint  or  aflBdavit* 

§  159:  Injunction  having  effect  of  writ  of  restitution  of  mining 
property.  See,  also,  as  to  injunctions  relating  to  mines  and  mining, 
Mills'  Statutes  (1891),  §§  1057,  3159,  3191,  3214,  3238-3241. 

Connecticut.— Gen.  Stats.  (1888),  §§  1273-1293. 

S  1273:  May  be  granted  "according  to  the  course  of  proceedings  in 
equity,  in  all  actions  for  equitable  relief  where  such  relief  is  properly 
demandable." 

§  1277:  Injunction  may  be  granted  "against  the  malicious  erec- 
tion ....  of  any  structure  upon  'land'  intended  to  annoy  and  in- 
jure any  owner  or  lessee  of  adjacent  land  in  respect  to  his  use  or 
disposition  of  the  same." 


{  262  EQUITABLE    REMEDIES.  462 

§§  1278-1282:  Public  or  private  nuisance  by  a  manufacturer;  any 
persons  aggrieved  may  unite  in  a  complaint  for  its  abatement  or  dia- 
continuance. 

See,  also,  §  525  (against  insolvent  debtor's  disposing  of  his  prop- 
**'ty);  §  1830  (against  bank,  savings  bank,  or  trust  company  when 
its  charter  is  forfeited);  §  2656  (against  building  injuring  source  of 
municipal  water  supply) ;  §  2668  (against  bridges  obstructing  naviga- 
ble streams);  §  2811  (concerning  custody  of  minor  children  in  divorce 
proceedings);  §§  2822,  2823,  2836  (concerning  the  business  of  insur- 
ance companies);  §  3429  (on  application  of  railroad  commissioners, 
to  restrain  any  person  from  exercising  the  duties  of  any  officer  in 
such  company). 

Delaware.— Rev.  Stats.  1852,  as  am.  1893,  p.  666,  e.  88  §  11. 

"Upon  the  petition  of  a  person  holding  any  lien  upon  real  estate, 
■whether  by  judgment,  recognizance,  mortgage,  or  otherwise,  the 
chancellor  may,  in  a  proper  case,  award  an  injunction,  or  the  Superior 
Court  of  the  county,  wherein  such  real  estate  is,  may  award  a  writ 
of  estrepement,  for  the  purpose  of  restraining  waste  upon  the  prem- 
ises subject  to  the  lien." 

Florida.— Rev.  Stats.  1892,  §§  1463-1472. 

§  1468:  Injunction  may  issue  against  sale  of  real  property  of  third 
person  under  a  writ  of  fieri  facias. 

§  1469:  Injunctions  may  issue  to  restrain  trespasses  on  timber 
lands,  by  cutting  trees,  etc. 

§  1472:  Injunction  may  issue  to  restrain  the  removal  of  mortgaged 
personal   property  from  the  state. 

§  800:  Injunction  may  issue  at  suit  of  a  board  of  health  to  restrain 
the  violation  of  rules  adopted  by  it  for  the  protection  of  the  public 
health. 

§  2006:  "The  circuit  courts  shall  have  equity  jurisdiction  to  en- 
join the  sale  of  all  property,  real  and  personal,  that  is  exempt  from 
forced  sale." 

§  2007:  Injunction  may  issue  to  restrain  officer  from  setting  apart 
nonexempt  property  as  exempt. 

Georgia.— Code,  1895,  §§  4913-4928. 

"§  4913  (3210):  For  what  purpose  granted. — Equity,  by  a  writ  of 
injunction,  may  restrain  proceedings  in  another  or  the  same  court, 
or  a  threatened  or  existing  tort,  or  any  other  act  of  a  private  in- 
dividual or  corporation  which  is  illegal  or  contrary  to  equity  and  good 
conscience,  and  for  which  no  adequate  remedy  is  provided  at  law." 

"§  4914:  Administration  of  criminal  laws,  no  interference  by 
•equity. — A  court  of  equity  will  take  no  part  in  the  administration  of 
the  criminal  law.  It  will  neither  aid  criminal  courts  in  the  exer- 
cise of  their  jurisdiction,  nor  will  it   restrain  or   obstruct  them." 


463  INJUNCTIONS;    ABSTEACT   OF    STATUTES.  §  262 

"§  4915  (321S):  Enjoining  a  court  of  law. — Equity  will  rot  enjoin 
the  proceedings  and  processes  of  a  court  of  law,  unless  there  is  some 
intervening  equity,  or  other  proper  defense,  of  which  the  party,  with- 
out fault  on  his  part,  cannot  avail  himself  at  law.  Writs  of  injunc- 
tion may  be  issued  by  judges  of  the  superior  court  to  enjoin  sales  by 
sheriffs,  at  any  time  before  the  sale  takes  place,  in  any  proper  case 
made  by  the  bill  or  application  for  injunction."  (As  to  setting  aside 
judgments,  see  §§  3987,  3988.) 

§  4916  (3219):  To  restrain  a  trespass. — Equity  will  not  interfere 
to  restrain  a  trespass,  unless  the  injury  is  irreparable  in  damages, 
or  the  trespasser  is  Insolvent,  or  there  exist  other  circumstances 
which,  in  the  discretion  of  court,  render  the  interposition  of  this  writ 
necessary  and  proper,  among  which  shall  be  the  avoidance  of  circuity 
and   multiplicity  of  actions. 

§  4917:  Waste  not  enjoined  when  title  in  dispute. — Equity  will  not 
interfere  by  injunction  to  restrain  waste  when  petitioner's  title  is  not 
clear.     Such  relief  is  granted  only  when  the  title  is  free  from  dispute. 

§  4918:  Creditors  without  lien. — Creditors  without  lien  cannot,  as 
a  general  rule,  enjoin  their  debtors  from  disposing  of  property,  nor 
obtain  injunction  or  other  extraordinary  relief  in  equity. 

§  4919:  Injunction  to  restrain  breach  of  contract  for  personal  ser- 
vices.— Generally,  an  injunction  will  not  issue  to  restrain  the  bread) 
of  a  contract  for  personal  services,  unless  they  are  of  a  peculiar  merit 
or  character,  and  cannot  be  performed  by  others. 

§  4920  (3220).  In  sound  discretion  of  judge. — The  granting  au'l 
continuing  of  injunctions  must  always  rest  in  the  sound  discretion 
of  the  judge,  according  to  the  circumstances  of  each  case. 

See,  also,  the  following  sections: 

§  3863  (3002):  Nuisatice. — Where  the  consequences  of  a  nuisance 
about  to  be  erected  or  commenced  will  be  irreparable  in  damages, 
and  such  consequences  are  not  merely  possible,  but  to  a  reasonable 
degree  certain,  a  court  of  equity  may  interfere  to  arrest  a  nuisance 
before  it  is  completed. 

§  4902:  "The  power  of  appointing  receivers  and  ordering  injunc- 
tions should  be  prudently  and  cautiously  exercised,  and  except  in 
clear  and  urgent  cases  should  not  be  resorted  to." 

Idaho.— Code   Civ.   Proc,    §§    3283-3293,    3373. 

Same  as  California,  with  some  additions.  §  3284  (6)  provides  for 
injunction  having  force  and  effect  of  a  writ  of  restitution,  in  case  of 
ouster  by  force,  etc. 

Illinois. — Hurd's  Eev.  Stats.  (1889),  c.  69.  Concerns  chiefly  mat- 
ters of  practice.  §  1:  What  part  of  judgment  may  be  enjoined. — 
"Only  so  much  of  any  judgment  at  law  shall  be  enjoined  as  the  com- 
plainant shall  show  himself  equitably  not  bound  to  pay,  and  so  much 
SIS  shall  be  sufficient  to  cover  costs." 


I  262  EQUITABLE    EEMEDIES.  464 

Indiana.— Burns'  Rev.  Stats.  1894,  §§  1161-1180  (1147-1166);  Code 
Civ.  Proc,  §§  177-196. 

"§  1162  (1148).  Proceedings  to  oMain.— 178.  When  it  appears  by 
the  complaint  that  the  plaintiff  is  entitled  to  the  relief  demanded, 
and  the  relief,  or  any  part  thereof,  consists  in  restraining  the  commis- 
sion or  continuance  of  some  act,  the  commission  or  continuance  of 
which,  during  the  litigation,  would  produce  great  injury  to  the  plain- 
tiff, or  when,  during  the  litigation,  it  appears  that  the  defendant  is 
doing,  or  threatens,  or  is  about  to  do,  or  is  procuring  or  suffering  some 
act  to  be  done,  in  violation  of  the  plaintiff's  rights,  respecting  the 
subject  of  the  action,  and  tending  to  render  the  judgment  ineffectual; 
or  when  such  relief,  or  any  part  of  it,  consists  in  restraining  proceed- 
ings upon  any  order  or  judgment, — an  injunction  may  be  granted 
to  restrain  such  act  or  proceedings  until  the  further  order  of  the 
court;  which  may,  afterward,  be  modified  upon  motion.  And  when 
it  appears  in  the  complaint  at  the  commencement  of  the  action,  or 
during  the  pendency  thereof  by  aflSdavit,  that  the  defendant  threatens 
or  is  about  to  remove  or  dispose  of  his  property,  with  intent  to  de- 
fraud his  creditors,  a  temporary  injunction  may  be  granted  to  re- 
strain the  removal  or  disposition  of  his  property." 

"§  292  (291).  Nuisance — Remedy. — 711,  Where  a  proper  case  is 
made,  the  nuisance  may  be  enjoined  or  abated,  and  damages  recovered 
therefor." 

Iowa.— McClain's  Code  (1888),  §§  4622-4643  (3386-3407). 

'*§  4622.  Grounds  for. — 3386.  An  injunction  may  be  obtained  as 
an  independent  remedy  in  an  action  by  equitable  proceedings,  in  all 
cases  where  such  relief  would  have  been  granted  in  equity  previous 
to  the  adoption  of  this  code;  and  in  all  cases  of  breach  of  contract 
or  other  injury,  where  the  party  injured  is  entitled  to  maintain,  and 
has  brought  an  action  by  ordinary  proceedings,  he  may,  in  the  same 
cause,  pray  and  have  a  writ  of  injunction  against  the  repetition  or 
continuance  of  such  breach  of  contract  or  other  injury,  or  the  com- 
mittal of  any  breach  of  contract  or  injury  of  a  like  kind,  arising  out 
of  the  same  contract,  or  relating  to  the  same  property  or  right,  and 
he  may  also,  in  the  same  action,  include  a  claim  for  damages  or  other 
redress. 

"§  4623.  Temporary  or  permanent. — 3387.  In  any  of  the  cases* 
mentioned  in  the  preceding  section,  the  injunction  may  either  be 
a  part  of  the  judgment  rendered  in  the  action  or  it  may,  if  proper 
grounds  therefor  are  shown,  be  granted  by  order  at  any  stage  of  the 
ease  before  judgment,  and  shall  then  be  known  as  a  temporary  in- 
junction." 

§■  4624:  Temporary,  when  allowed. — Similar  to  first  two  clauses  of 
the  Indiana  section,  supra. 

See,  also,  §  1746  (against  insolvent  life  insurance  companies);  §  2047 
(to  enforce  rulings,  orders  and  regulations  of  the  board  of  railroad 


465  INJUNCTIONS;   ABSTKACT   OF   STATUTES.  i  262 

commissioners);  §  2334  (to  enjoin  nuisance  committed  by  the  sale, 
etc.,  of  intoxicating  liquors;  at  the  suit  of  any  citizen  of  the  county. 
See,  also,  §§  2386,  2387,  2397);  §  4390  (suspending  proceedinga  on  a 
judgment  sought  to  be  vacated  or  modified);  §  4553  (to  procure  trans- 
fer of  proceeding  for  foreclosure  of  chattel  mortgage);  §  4567  (nui- 
Bance  defined;  same  as  California  code). 

Kansas.— Gen.  Stats.  1901,  §§  4684-4700;  Code,  §§  237-253. 

Code,  §  237:  "The  injunction  provided  by  this  code  is  a  command 
to  refrain  from  a  particular  act.  It  may  be  the  final  judgment  in 
an  action,  or  may  be  allowed  as  a  provisional  remedy,  and,  when  so 
allowed,  it  shall  be  by  order.     The  writ  of  injunction  is  abolished. " 

Code,  §  238:  Grounds  for  injunction. — Similar  to  Arkansas,  although 
wording  varies  slightly,  and  adding  the  following:  "And  when,  dur- 
ing the  pendency  of  an  action,  it  shall  appear,  by  affidavit,  that  the 
defendant  threatens  or  is  about  to  remove  or  dispose  of  his  property 
with  intent  to  defraud  his  creditors,  or  to  render  the  judgment  in- 
effectual, a  temporary  injunction  may  be  granted  to  restrain  such  re- 
moval or  disposition.  It  may  also  be  granted  in  any  case  where  it 
is  specially  authorized  by  statute." 

Code,  §  239:  May  be  granted  at  time  of  commencement  of  action, 
or  afterward,  upon  afiidavit. 

Code,  §  240:  Court  may  direct  reasonable  notice  to  be  given,  but 
may  restrain  action  until  hearing. 

Code,  §  241:  "An  injunction  shall  not  be  granted  against  a  party 
■who  has  answered,  unless  upon  notice;  but  such  party  may  be  re- 
strained until  the  decision  of  the  application  for  an  injunction." 

Code,  §  242:  Bond. 

Code,  §  252:  "A  defendant  may  obtain  an  injunction  upon  an  an- 
swer in  the  nature  of  a  counterclaim.  He  shall  proceed  in  the  man- 
ner hereinbefore  described." 

Code,  §  253:  "An  injunction  may  be  granted  to  enjoin  the  illegal 
levy  of  any  tax,  charge  or  assessment,  or  the  collection  of  any  illegal 
tax,  charge  or  assessment,  or  any  proceeding  to  enforce  the  same; 
and  any  number  of  persons  whose  property  is  affected  by  a  tax  or 
assessment  so  levied  may  unite  in  the  petition  filed  to  obtain  such  in- 
junction. An  injunction  may  be  granted  in  the  name  of  the  state 
to  enjoin  and  suppress  the  keeping  and  maintaining  of  a  common 
nuisance.  The  petition  therefor  shall  be  verified  by  the  county  at- 
torney of  the  proper  county,  or  by  the  attorney-general,  upon  in- 
formation and  belief,  and  no  bond  shall  be  required." 

Gen.  Stats.  1901,  §§  7656,  7658:  Duty  of  treasurer  upon  dissolution 
of  injunction  restraining  collection  of  tax. 

§  3176:  Injunction  may  issue  against  collection  of  special  assesth 
ment  when  officers  are  interested  in  contract. 
Equitable  Eemedies,  Vol.  I — 30 


§   262  EQUITABLE    REMEDIES.  466 

§  2450:  Declares  places  used  for  unlawful  purposes,  such  as  for 
bucket  shops,  to  be  nuisances.  "The  attorney-general,  county  attor- 
ney or  any  citizen  of  the  county  where  such  nuisance  exists  or  is  kept 
and  maintained  may  maintain  an  action  in  the  name  of  the  state  to 
abate  and  perpetually  enjoin  the  same.  The  injunction  may  be 
granted  at  the  commencement  of  the  action,  and  no  bond  shall  be  re- 
quired." 

§  2231:  Declares  places  where  gaming,  etc.,  is  carried  on  to  bo 
nuisances,  and  authorizes  injunction  as  in  §  2450. 

§  2686:  Electors  may  maintain  action  for  injunction  to  restrain  re- 
moval of  county  offices  and  to  determine  validity  of  county  seat  elec- 
tion. 

§■  7855:  Injunction  may  issue  to  restrain  wrongful  use  of  labels, 
trade-marks,   etc.,   of   any   association   or   union    of   workingmen. 

Kentucky.— Code  (1888),  §§  271-297. 

§  272:  Defines  causes  for  temporary  injunction  in  language  similar 
to  that  of  the  Iowa  Code,  §_^  4624. 

§  285:  Judgment  can  be  enjoined  only  in  the  court  rendering  it. 

§  17:  "A  judgment  obtained  in  an  ordinary  action  shall  not  be  an- 
nulled nor  modified  by  any  order  in  an  equitable  action,  except  for  a 
defense  which  arises  or  is  discovered  after  rendition  of  the  judg- 
ment." 

§  523  [584]:  Injunction  suspending  proceedings  on  a  judgment  may 
be  obtained  by  a  party  seeking  to  vacate  or  modify  it. 

§  436:  Injunction,  in  action  in  equity  for  settlement  of  decedent's 
estate,  against  prosecution  of  actions  by  creditors  against  the  repre- 
sentatives of  the  decedent. 

§  467:  In  forcible  entry  and  detainer  proceedings,  to  restrain  waste 
and  destruction  of  the  premises. 

§  476:  In  mandamus  or  prohibition  proceedings,  to  prevent  dam- 
age or  injury  to  the  applicant. 

' '  §  378 :  When  Collection  of  Judgment  mau  be  Enjoined. — During  the 
pendency  of  an  action,  the  judgment  in  which  when  recovered  could 
be  used  as  a  set-off  against  a  judgment  in  favor  of  the  defendants  or 
either  of  them,  the  court,  to  prevent  loss  by  insolvency,  non-residenco, 
or  otherwise,  may  enjoin  the  collection  of  the  judgment  in  favor  of 
6uch  defendants." 

Maine.— Rev.  Stats.  1903. 

Page  447:  Upon  dissolution  of  corporation,  injunction  may  be 
granted. 

Page  396:  Injunction  may  issue  to  restrain  infringement  of  trade 
marks. 

Page  952:  The  attorney-general  may  have  an  injunction  to  restrain 
B  lottery. 


467  INJUNCTIONS;    ABSTRACT   OF   STATUTES.  §  262 

Page  76:  Injunction  may  issue  at  suit  of  ten  or  more  taxable  citi- 
zens to  restrain  any  action  in  which  municipal  officers  are  privately 
interested. 

Page  678:  "When  counties,  cities,  towns,  school  districts,  village  or 
other  public  corporations,  for  a  purpose  not  authorized  by  law,  vote 
to  pledge  their  credit  or  to  raise  money  by  taxation  or  to  exempt 
property  therefrom,  or  to  pay  money  from  their  treasury,  or  if  anj 
of  their  officers  or  agents  attempt  to  pay  out  such  money  for  such 
purpose,  the  court  shall  have  equity  jurisdiction  on  petition  or  appli- 
cation of  not  less  than  ten  taxable  inhabitants  thereof,  briefly  setting 
forth  the  cause  of  complaint." 

Page  269:  "All  places  used  as  houses  of  ill-fame,  or  for  the  illegal 
sale  or  keeping  of  intoxicating  liquors,  or  resorted  to  for  lewdness  or 
gambling;  all  houses,  shops  or  places  where  intoxicating  liquors  are 
sold  for  tippling  purposes,  and  all  places  of  resort  where  intoxicating 
liquors  are  kept,  sold,  given  away,  drank  or  dispensed  in  any  manner 
not  provided  for  by  law,  are  common  nuisances.  The  supreme  judi- 
cial court  shall  have  jurisdiction  in  equity,  upon  information  filed  br 
the  county  attorney  or  upon  petition  of  not  less  than  twenty  legal 
voters  of  such  town  or  city,  setting  forth  any  of  the  facts  contained 
herein,  to  restrain,  enjoin  or  abate  the  same,  and  an  injunction  for 
such  purpose  may  be  issued  by  said  court  or  any  justice  thereof." 

Pages  517,  518:  Injunction  to  prevent  taking  of  property  by  emi- 
nent domain  until  compensation  made. 

Page  827.  Injunction  against  waste  by  defendant  in  action  to  re- 
cover possession  of  land. 

Maryland. — Pub.  Gen.  Laws,  1904. 

Page  400,  art.  16,  §  80:  "No  court  shall  refuse  to  issue  a  man- 
damus or  injunction  on  the  mere  ground  that  the  party  asking  for 
the  same  has  an  adequate  remedy  in  damages,  unless  the  party  against 
whom  the  same  is  asked  shall  show  to  the  court's  satisfaction  that  he 
has  property  from  which  the  damages  can  be  made,  or  shall  give  a 
bond  in  a  penalty  to  be  fixed  by  the  court,  and  with  a  surety  or 
sureties  approved  by  the  court,  to  answer  all  damages  and  costs  that 
he  may  be  adjudged  by  any  court  of  competent  jurisdiction  to  pay 
to  the  party  asking  such  mandamus  or  injunction  by  reason  of  his 
not  doing  the  act  or  acts  sought  to  be  commanded,  or  by  reason  of 
his  doing  the  act  or  acts  sought  to  be  enjoined,  as  the  case  may  be." 

Page  437,  art.  16,  §  190:  Court  has  power  to  issue  mandatory  injunc- 
tions. 

Page  1548,  art.  66,  §  16:  No  injunction  to  stay  sale  or  proceedings 
after  mortgage  sale,  except  at  suit  of  party  to  mortgage,  or  of  one 
claiming  under  him,  and  upon  oath  that  debt  has  been  fully  paid, 
or  that  mortgagee  refuses  to  give  credit  for  part  paid,  or  that  there 
has  been  fraud. 


§  262  EQUITABLE    EEMEDIES.  468 

Massachusetts. — Pub.  Stats.  1882.     Among  other  provisions,  see 

Chapter  27,  §  129:  Abuse  of  corporate  power  by  toicns,  providing 
for  suit  by  not  less  than  ten  taxable  inhabitants,  and  injunction  there- 
in, "when  a  town  votes  to  raise  by  taxation  or  pledge  of  its  credit,  or 
to  pay  from  its  treasury,  any  money  for  a  purpose  other  than  those 
for  which  it  has  the  legal  right  and  power."  On  the  subject  of  this 
section,  see  Babbitt  v.  Selectmen  of  Savoy,  3  Cush.  530;  Tash  v. 
Adams,  10  Cush.  252;  Hood  v.  Lynn,  1  Allen,  103;  Fuller  v.  Melrose, 
1  Allen,  1G6;  Frost  v.  Belmont,  6  Allen,  152;  Allen  v.  Marion,  11 
Allen,  108;  Copeland  v.  Huntington,  99  Mass.  525;  Carlton  v.  Salem, 
103  Mass.  141;  Fisk  v.  Springfield,  116  Mass.  88,  89;  Mead  v.  Acton, 
139  Mass.  341,  345,  1  N.  E.  413;  Prince  v.  Boston,  148  Mass.  285,  19 
N.  E.  218. 

Chapter  76,  §  7:  To  restrain  the  illegal  use  of  trade-marks  or  names 
Se«  Ames  v.  King,  2  Gray,  379;  Bowman  v.  Floyd,  3  Allen,  76,  80  Am. 
Dec.  55;  Magee  Furnace  Co.  v.  Le  Barron,  127  Mass.  115;  Connell  v. 
Keed,  128  Mass.  477,-35  Am.  Eep.  397;  Lawrence  Mfg.  Co.  v.' Lowell 
etc.  Mills,  129  Mass.  325,  37  Am.  Eep.  362;  Eussia  Cement  Co.  v. 
Le  Page,  147  Mass.  206,  9  Am.  St.  Eep.  685,  17  N.  E.  304. 

Chapter  80,  §  26:  To  restrain  a  nuisance  affecting  the  public  health. 

§  26:  To  prevent  offensive  trades:  See  Watertown  v.  Mayo,  109 
Mass.  315,  12  Am.  Eep.  694. 

§§  98,  99:  To  prevent  pollution  of  sources  of  water  supply.  See 
Harris  v.  Mackintosh,  133  Mass.  228,  230. 

Chapter  112,  §  104:  Against  taking  of  land  by  railroad. 

Chapter  179,  §§  12-14:  To  stay  waste  by  person  whose  land  is  at- 
tached, etc. 

Chapter  180,  §§  5,  6,  7:  Nuisance;  injunction  either  in  a  suit  in 
equity   or   in   an   action    of   tort. 

Provisions  in  the  statutes  since  1882  for  injunctions  in  special  cases 
are  exceedingly   numerous. 

Michigan. — Comp.  Laws,  1897. 

§§  502-514:  Courts  have  jurisdiction  to  stay  proceedings  at  law, 
but  security  must  be  given. 

§  3937:  "No  injunction  shall  issue  to  stay  proceedings  for  the 
assessment  or  collection  of  taxes  under  this  act." 

S  3938:  Holder  of  certificate  of  tax  sale  is  entitled  to  injunction  to 
restrain  waste  on  timber  land. 

§§  4363,   4364:  No   injunction   against   collection   of   drain   taxes. 

§  8687:  Husband  may  be  enjoined  from  disposing  of  property  pend- 
ing suit  by  wife  for  maintenance. 

§  11132:  "The  circuit  court  for  each  county  shall  have  equity  ju- 
risdiction of  all  matters  concerning  waste,  in  which  there  is  not  a 
plain,  adequate  and  complete  remedy  at  law;  and  may  grant  injunc- 
tions to  stay  or  prevent  waste;  and  whenever  it  shall  be  necessary  or 
proper  to  have  any  fact  tried  by  a  jury,  such  court  may  award  a 
ImgTied  issue  for  that  purpose,  as  in  other  cases." 


469  INJUNCTIONS;    ABSTRACT   OF   STATUTES.  §  262 

Minnesota.— Stats.    (1894),  §§  5343-5350. 

§  5344:  Eelating  to  the  granting-  of  temporary  injunctions,  resem- 
bles, in  general,  the  first  two  clauses  and  the  last  clause  of  the  In- 
diana statutes,  §  1162. 

See,  also,  §§  393  (c),  399  (injunction  to  enforce  order  of  railroad  and 
warehouse  commission);  §§  432,  1496  (to  enforce  orders  of  state  board 
of  health  relating  to  pollution  of  water  supply,  or  to  noxious  trades); 
§  2261  (against  orders  of  factory  inspectors);  §  2911  (by  judgment 
creditor  of  co-operative  association  to  restrain  alienation  of  property 
and  doing  business). 

§  5434  (Acts  of  1877,  c.  131,  §  1):  Actions  to  set  aside  judgment 
for  fraud,  etc. — "That  in  all  cases  where  judgment  heretofore  has 
been  or  hereafter  may  be  obtained  in  any  court  of  record  by  means 
of  the  perjury,  subornation  of  perjury,  or  any  fraudulent  act,  prac- 
tice or  representation  of  the  prevailing  party,  an  action  may  be 
brought  by  the  party  aggrieved  to  set  aside  said  judgment,  at  any 
time  within  three  years  after  the  discovery  by  him  of  such  perjury," 

etc "In  such  action  the  court  shall  have  and  possess  the  same 

powers  heretofore  exercised  by  courts  of  equity  in  like  proceedings, 
and  may  perpetually  enjoin  the  enforcement  of  such  judgment,  or 
command  the  satisfaction  thereof,  and  may  also  compel  the  prevailing 
party  to  make  restitution  of  any  money  or  other  property  received 
by  virtue  thereof,  and  may  also  make  such  other  or  further  order  or 
judgment  as  may  be  just  or  equitable,  provided"  that  rights  of  inno- 
cent third  parties  under  the  judgment  shall  not  be  affected.  See  this 
statute  interpreted  in  Wieland  v.  Shillock,  24  Minn.  345;  Baker  v. 
Sheehan,  29  Miun.  235,  12  N.  W.  704;  Spooner  v.  Spooner,  26  Minn. 
138,  1  N.  W.  838;  Bornsta  v.  Johnson,  38  Minn.  230,  36  N.  W.  341; 
Stewart  v.  Duncan,  40  Minn.  410,  42  N.  W.  89;  Hass  v.  Billings,  42 
Minn.  63,  43  N.  W.  797;  Wilkins  v.  Sherwood,  55  Minn.  154,  56  N.  W. 
591;  Clark  v.  Lee,  58  Minn.  410,  59  N.  W.  970. 

See,  also,  §  5893  (injunction,  at  suit  of  attorney-general,  against 
usurpation  of  corporate  powers);  §§  5900,  5901  (against  insolvent 
banking  and  insurance  companies) ;  §  5972  (against  corporation,  after 
judgment  of  exclusion  from  corporate  rights);  §§  6921,  6922  (against 
counterfeiting  the  labels,  trade-marks,  etc.,  of  labor  unions;  §  692S 
(against  counterfeiting  of  trade-marks  in  general);  $  7715  (against 
operating  warehouses  without  a  license). 

Mississippi. — Annotated  Code,  1892. 

§  558:  An  injunction  to  stay  proceedings  at  law  shall  not  be  issued 
until  the  party  shall  enter  into  a  bond  conditioned  to  pay  the  judg- 
ment at  law  in  case  the  injunction  is  dissolved. 

§  559:  Bond  in  other  cases. 

§  561:  No  injunction  shall  issue  to  restrain  collection  of  taxes  un- 
less bond  is  filed  conditioned  for  payment  of  tax  if  injunction  di»- 
•olved. 


$  262  EQUITABLE    EEMEDIES.  470 

§  483:  "The  chancery  court  shall  have  jurisdiction  of  suits  by  one 
or  more  tax-payers  of  any  county,  city,  town,  or  village,  to  restrain 
the  collection  of  any  taxes  levied  or  attempted  to  be  collected  with- 
out authority  of  law." 

§  484:  If  such  an  injunction  is  .dissolved,  the  court  shall  enter  de- 
cree against  the  complainant  and  his  sureties  for  the  amount  of  taxes 
enjoined  and  ten  per  cent  thereon,  and  costs  of  suit. 

Missouri.—Kev.  Stats.  1889,  §§  3627-3649. 

§  3630:  Granting  of  temporary  injunction;  same  as  Indiana,  first 
two   clauses. 

"§  3635:  Extent  of  judgment  to  stay  proceedings.— No  injunction 
shall  be  granted  to  stay  any  judgment  or  proceeding,  except  so  much 
of  the  recovery  or  cause  of  action  as  the  plaintiff  shall  show  him- 
self equitably  entitled  to  be  relieved  against,  and  so  much  as  will 
cover  costs." 

§  3648:  To  protect  property  of  married  woman  from  waste  by  hus- 
band. 

"§  3649:  The  remedy  by  writ  of  injunction  or  prohibition  shall  ex- 
ist in  all  cases  where  a  cloud  would  be  put  on  the  title  of  real  estate 
being  sold  under  an  execution  against  a  person,  partnership  or  corpo- 
ration having  no  interest  in  such  real  estate  subject  to  execution  at 
the  time  of  sale,  or  an  irreparable  injury  to  real  or  personal  prop- 
erty is  threatened,  and  to  prevent  the  doing  of  any  legal  wrong 
whatever,  whenever  in  the  opinion  of  the  court  an  adequate  remed> 
eannot  be  afforded  by  an  action  for  damages." 

See,  also,  §  1023  (injunction  against  corporation  for  failure  to  main- 
tain a  general  office  within  the  state);  §  1031  (against  corporation 
failing  to  restore  gra'nts  in  certain  cases) ;  §  1043  (railroad  may  be 
enjoined  from  running  trains  in  certain  cases) ;  §  1150  (against  com- 
mon carriers);  §  1059  (against  consolidation  of  railroads);  §  1306 
(against  bank  or  trust  company,  when  not  to  issue);  §  1421  (fraternal 
beneficiary  association  enjoined  from  doing  business,  when) ;  §  3074 
(to  stay  plaintiff  in  ejectment  from  taking  possession  of  the  land  un- 
til the  value  of  improvements  is  ascertained);  §  8025  (against  insol- 
vent   insurance   company). 

Montana.— Code  Civ.  Proc,  §§  870-881. 

§  871:  When  injunction  may  be  granted:  substantially  the  same 
as  California  Code  Civ.  Proc,  §  526,  with  this  addition:  "4.  When 
it  appears,  by  affidavit,  that  the  <lefendant,  during  the  pendency  of 
the  action,  threatens,  or  is  about  to  remove,  or  to  dispose  of  his 
property,  with  intent  to  defraud  the  plaintiff,  an  injunction  order 
may  be  granted,  to  restrain   the   removnl   or   disposition." 

Civ.  Code,  §§  4460-4463:  Same  as  California  Civ.  Code,  §§  3420- 
3423. 

Nebraska.— Code  Civ.  Proc,  §§  250-265. 

§  251:  Cause  for  allowance  of  temporary  injunction;  the  usual  code 
provision. 


47.1  INJUNCTIONS;   ABSTKACT   OF   STATUTES.  §  2Gii 

Taxation. — Conip.  Stats.  1899,  c.  77,  §  144:  "No  injunction  shall 
be  granted  by  any  court  or  judge  in  this  state,  to  restrain  the  col- 
lection of  any  tax,  or  any  part  thereof,  hereafter  levied,  nor  to  re- 
strain the  sale  of  any  property  for  the  non-payment  of  any  such  tax, 
except  such  tax,  or  the  part  thereof  enjoined,  be  levied  or  assessed 
for  an  illegal  or  unauthorized  purpose."  See,  also,  as  to  drainage 
assessments,  c.  89,  art.  1,  §  28. 

Against  common  carrier  disobeying  order  of  board  of  transporta- 
tion, c.  72,  art.  8,  §  16. 

Suspending  proceedings  on  judgment;  injunction  allowed  in  favor 
of  party  seeking  to  vacate  or  modify  a  judgment  or  order:  Code  Civ. 
Proc,  §§  607,  608. 

New  Hampshire.— Pub.  Stats.  (1891),  c.  205,  §  1. 
' '  The  supreme  court  ....  may  grant  writs  of  injunction  when- 
ever the  same  are  necessary  to  prevent  fraud  or  injustice."  See, 
also,  c.  162,  §  13  (prohibiting  transaction  by  bank,  on  application 
of  Lank  commissioners);  §  19  (restraining  proceedings  at  law  by 
creditors  of  insolvent  bank) ;  c.  171,  §  10  (against  life  insurance  com- 
panies, etc.,  failing  to  make  statements  to  insurance  commission); 
c.  175,  §  12  (in  divorce  proceedings,  prohibiting  the  husband  from 
imposing  any  restraint  upon  the  personal  liberty  of  the  wife,  or 
from  entering  the  tenement  where  she  resides  during  the  pendency 
of  the  libel);  c.  176,  §  12  (to  protect  divorced  wife's  custody  of 
minor  child);  c.  205,  §  5  (enjoining  certain  nuisances). 
New  Jersey. — Gen.  Stats.    1895. 

Pages  387,  388:  No  injunction  against  proceedings  at  law  after 
verdict  or  judgment,  unless  bond  filed  conditioned  to  abide  such  or- 
der as  the  chancellor  may  make. 

New  York.-^Code  Civ.  Proc.  (1896),  §§  602-630. 
§  602   (being  part  of  Code  of  Procedure,  §  218):   "Writ  of  injunc- 
tion abolished  and  order  substituted. — The  writ  of  injunction  has  been 
abolished.     A  temporary  injunction  may  be  granted  by  order,  as  pre- 
scribed in  this  article." 

§  603  (Code  Proc,  §'  219,  first  clause):  Injunction^  when  the  right 
thereto  depends  upon  the  nature  of  the  action. —  "Where  it  appears, 
from  the  complaint,  that  the  plaintiff  demands  and  is  entitled  to  a 
judgment  against  the  defendant,  restraining  the  commission  or  con- 
tinuance of  an  act,  the  commission  or  continuance  of  which  durin^ 
the  pendency  of  the  action,  would  produce  injury  to  the  plaintiff 
an  injunction  order  may  be  granted  to  restrain  it." 

§'  604  (amended,    1877;  Code    Civ.    Proc,  §  219):  Injunction,  tchen 

the  right  thereto  depends  upon    extrinsic    facts. — "In    either    of    the 

following  cases,  an  injunction  order  may  also  be  granted  in  an  action- 

'<1.     Where   it    appears,  by  affidavit,   that   the    defendant,   during: 

the  pendency  of  the  action,  is  doing,  or  procuring,  or  suffering  to  be 


§   2G2  EQUITABLE    EEMEDIES.  !»« 

done,  or  threatened^  or  is  about  to  do,  or  to  procure,  or  suffer  t^  be 
done,  an  act,  in  violation  of  the  plaintiff's  rights,  respecting  tL<,  sub- 
ject of  the  action,  and  tending  to  render  the  judgment  ineffr^,  tual, 
an  injunction  order  may  be  granted  to  restrain  him  therefrom. 

"2.  Where  it  appears,  by  affidavit,  that  the  defendant,  'luring 
the  pendency  of  the  action,  threatens,  or  is  about  to  remove,  or  to 
dispose  of  his  property,  with  intent  to  defraud  the  plaintiff,  an  in- 
junction order  may  be  granted,  to  restrain  the  removal  or  disposi- 
tion." 

See,  also,  §  719  (Code  Proc,  §  401),  plaintiff  asking  for  order  of 
arrest,  injunction,  and  warrant  of  attachment,  or  two  of  them,  may 
be  required  to  elect  between  them. 

§  1806  (2  Eev.  Stats.,  466,  §  56) :  In  certain  actions  prescribed  by 
the  title  on  "Actions  Relating  to  Corporations,"  creditors  may  be 
enjoined  from  bringing  or  prosecuting  actions  against  the  defend- 
ants. 

North   Carolina. — Clark's  Code  of   Civ.  Proc. 

§  334.  Injunction  as  a  provisional  remedy  is  abolished,  and  tem- 
porary injunction  by  order  is  substituted  therefor. 

Page  285:  "No  injunction  shall  be  granted  by  any  court  or  judge 
in  this  state  to  restrain  the  collection  of  any  tax,  or  any  part  thereof, 
hereafter  levied,  nor  to  restrain  the  sale  of  any  property  for  the 
non-payment  of  any  such  tax,  except  such  tax,  or  the  part  thereof 
enjoined,  be  levied  or  assessed  for  an  illegal  or  unauthorized  pur- 
pose, or  be  illegal  or  invalid,  or  the  assessment  be  illegal  or  in- 
valid." 

§  338:  "(1)  When  it  shall  appear  by  the  complaint  that  the  plain- 
tiflE  is  entitled  to  the  relief  demanded,  and  such  relief  or  any  part 
thereof  consists  in  restraining  the  commission  or  continuance  of  some 
act,  the  commission  or  continuance  of  which,  during  the  litigation, 
would   produce   injury   to   the   plaintiff;  or, 

("In  an  application  for  an  injunction  to  enjoin  a  trespass  on  land, 
it  shall  not  be  necessary  to  allege  the  insolvency  of  the  defendant 
when  the  trespass  complained  of  is  continuous  in  its  nature  or  is 
the  cutting  or  destruction  of  timber  trees";) 

"(2)  When,  during  the  litigation,  it  shall  appear  by  affidavit  of 
plaintiff,  or  any  other  person,  that  the  defendant  is  doing,  or  threat- 
ens, or  is  about  to  do,  or  procuring  or  suffering  some  act  to  be  done 
in  violation  of  the  plaintiff's  rights  respecting  the  subject  of  the 
action  and  tending  to  render  the  judgment  ineffectual,  a  temporary 
injunction  may  be  granted  to  restrain  him  therefrom; 

"(3)  And  where,  during  the  pendency  of  the  action,  it  shall  ap- 
pear by  affidavit  of  plaintiff  or  any  other  person,  that  the  defend- 
ant threatens,  or  is  about  to  remove  or  dispose  of  his  property,  with 
intent  to  defraud  the  plaintiff,  a  temporary  injunction  may  be 
panted  to  restrain  such  removal  or  disposition,'* 


473  INJUNCTIONS;   ABSTKACT   OF   STATUTES.  {   268 

§  339:  May  be  granted  at  time  of  commencement  of  action,  or  at 
any  time  afterwards,   before  judgment. 
§    341:   Undertaking   on   injunction. 

North  Dakota. — Revised  Code,  1899. 

§  5343:  "The  writ  of  injunction  as  a  provisional  remedy  is  abol- 
ished, and  an  injunction  by  order  is  substituted  therefor." 

§  5344:  When  temporary  injunctions  issued. — Practically  the  same 
as  North  Carolina. 

§  5045:  "Except  when  otherwise  provided  by  this  chapter,  a  final 
injunction  may  be  granted  to  prevent  the  breach  of  an  obligation 
existing  in  favor  of  the  applicant: 

'  *  1.  When  pecuniary  compensation  would  not  afford  adequate  re- 
lief. 

"2.  When  it  would  be  extremely  diflScult  to  ascertain  the  amount 
of  compensation  which  would  afford  adequate  relief. 

"3.  When  the  restraint  is  necessary  to  prevent  a  multiplicity  of 
judicial   proceedings;  or, 

"4.     When  the  obligation  arises  from  a  trust." 

§  5046:   "An  injunction  cannot  be  granted: 

"1.  To  stay  a  judicial  proceeding  pending  at  the  commencement 
of  the  action  in  which  the  injunction  is  demanded,  unless  such  re- 
straint is  necessary  to  prevent  a  multiplicity  of  such  proceedings. 

"2.  To  stay  proceedings  in  a  court  of  the  United  States. 

"3.  To  stay  proceedings  in  a  state  upon  a  judgment  of  a  court  of 
that  state. 

"4.  To  prevent  the  execution  of  a  public  statute  by  officers  of  the 
law  for  the  public  benefit. 

"5.  To  prevent  the  breach  of  a  contract,  the  performance  of  which 
would  not  be  specifically  enforced. 

"6.  To  prevent  the  exercise  of  a  public  or  private  office  in  a  lawful 
manner  by  the  person  in  possession. 

"7.  To  prevent  a  legislative  act  by  a  municipal  corporation." 

§  5347:   Undertaking  on  injunction. 

§  5349:  Not  issued  to  suspend  business  of  corporation^  without  no- 
tice, unless  state  is  a  party, 

Ohio.— Rev.   Stats.    (1897),   §§   -5571-5586. 

§  5572:  Causes   for  an  injunction   (the   usual   code   provisions). 

§  1277:  "The  prosecuting  attorneys  of  the  several  counties  of 
the  state,  upon  being  satisfied  that  the  funds  of  the  county,  or  any 
public  moneys  in  the  hands  of  the  county  treasurer  are  about  to  be 
misapplied,  or  that  a  contract  in  contravention  of  the  laws  of  this 
state  is  about  to  be  entered  into,  or  is  being  executed,  or  that  a  con- 
tract was  procured  by  fraud  or  corruption,  shall  apply  by  civil  ac- 
tion in  the  name  of  the  state  to  a  court  of  competent  jurisdiction, 
to  restrain  such  contemplated  misapplication  of  funds,  and  to  ru- 
strain  the  completion  or  execution  of  such  contract." 


§   2G2  EQUITABLE    EEMEDIES.  474 

§  1278:  "In  case  the  prosecuting  attorney  fails,  upon  the  written 
request  of  any  of  the  tax-payers  of  the  county,  to  make  the  appli- 
cation contemplated  in  the  preceding  section,  such  tax-payer  may  in- 
stitute such  civil  action  in  the  name  of  the  state,"  etc. 

§§  1777,  1778:  Similar  provisions  as  to  the  duty  of  corporation 
counsel  of  cities  to  apply  for  injunction,  and  right  of  tax-payers  to 
sue  on  his  refusal. 

§§  3231-3233:  To  enforce  labor  liens  on  railroads,  public  struc- 
tures, etc. 

§  3371:  To  prevent  discrimination,  etc.,  by  railroads. 

§  4490:  Assessments  for  county  ditches  not  to  be  enjoined  for 
error. 

§  53G1:  Suspending  proceedings  on  judgment  or  order,  in  favor 
of  paity  seeking  to  vacate  or  modify  the  same   (usual  provision). 

§'  5701:  In  divorce  proceedings,  to  prevent  disposal  or  incumbrance 
of  property  to  defeat  right  of  alimony. 

§  5705:  To  protect  married  woman's  property  from  conversion  or 
waste    by   husband. 

§§  5848-5851:  Provides  for  actions  to  enjoin  the  illegal  levy  of 
taxes  and  assessments,  or  the  collection  of  either;  parties  to  such 
actions;  plaintiff  in  action  to  enjoin  collection,  who  admits  a  part 
to  have  been  legally  levied,  must  first  pay  or  tender  the  sum  admit- 
ted to  be   due. 

§§  6786-6788:  Injunction  ancillary  to  proceedings  in  quo  warranto 
against  banking  association. 

Oklahoma. — Rev.  Stats.  1903. 

§  4424:  "The  injunction  provided  by  this  code  is  a  command  to 
refrain  from  a  particular  act.  It  may  be  the  final  judgment  in  an 
action,  or  may  be  allowed  as  a  provisional  remedy.  The  writ  of  in- 
junction  is   abolished." 

§  4425:  Temporary  injunctions.  Same  as  North  Carolina,  adding: 
"It  may,  also,  be  granted  in  any  case  where  it  is  specially  author- 
ized  by   statute." 

§  4427:  "If  the  court  or  judge  deem  it  proper  that  the  defendant, 
or  any  party  to  the  suit,  should  be  heard  before  granting  the  in- 
junction, it  may  direct  a  reasonable  notice  to  be  given  to  such  party 
to  attend  for  such  purpose,  at  a  specified  time  and  place,  and  may, 
in  the  meantime,  restrain  such  party." 

§§   4429,  4435:  Bond  for  injunction. 

§  4440:  "An  injunction  may  be  granted  to  enjoin  the  illegal  levy 
of  any  tax,  charge  or  assessment,  or  the  collection  of  any  illegal 
tax,  charge  or  assessment,  or  any  proceeding  to  enforce  the  same; 
and  any  number  of  persons  whose  property  is  affected  by  a  tax  or 
assessment  so  levied  may  unite  in  the  petition  filed  to  obtain  such 
injunction.  An  injunction  may  be  granted  in  the  name  of  the  ter 
xitory    to    enjoin    and    suppress   the    keeping    and   maintaining   of   »• 


475  INJUNCTlOiNS;    ABSTKACT    OF   STATUTES.  S  262 

common  nuisance.  The  petition  therefor  shall  be  verified  by  the 
county  attorney  of  the  proper  county,  or  by  the  attorney  general, 
upon  information  and  belief,  and  no  bond  shall  be  required." 

Oregon. — Bellinger  &  Cotton's  Codes  and  Stats. 

§  417:  "An  injunction  is  an  order  requiring  a  defendant  in  a  suit 
to  refrain  from  a  particular  act;  it  is  only  allowed  as  a  provisional 
remedy,  and  when  a  decree  is  given  enjoining  a  defendant,  such 
decree  shall  be  effectual  and  binding  on  such  defendant  without 
other  proceeding  or  process,  and  may  be  enforced  if  necessary  as 
provided    in    section    415." 

§   418:   Undertaking   on   injunction. 

§  343:  Individual  may  enjoin  private  nuisance  when  legal  remedy 
inadequate. 

Pennsylvania. — Pepper  &  Lewis'  Digest  (1894). 

Page  3887,  §  14:  Judgment  of  ouster  and  exclusion  in  quo  war- 
ranto proceedings  to  be  enforced  by  injunction. 

Supplement,   1894-97. 

Page  614,  §  4:  Injunction  to  prevent  counterfeiting  of  trades 
union    labels. 

Rhode  Island. — Gen.  Laws,  1896. 

Chapter  161,  §  2:  To  prevent  discrimination  by  common  carriers. 

Chapter  178,  §§  42,  43,  46,  47,  49,  67,  70,  73:  Against  banks  and 
institutions    for    savings. 

Chapter   181,    §§   5-9:  Against   domestic   insurance   companies. 

Chapter  195,   §  16:  Temporary  injunctions  in  divorce  proceedings. 

Chapter  274,  §§  19,  20:  To  restrain  insolvents  from  leaving  the- 
state,  etc. 

South  Carolina. — Code  Civ.  Proc,  $  240  (usual  threefold  code  pro- 
vision). 

South  Dakota. — iCiv.  Code,  §}  5850-5853  (same  as  California  Civil 
Code). 

Code  Civ.  Proc,  §§  6190-6198. 

g  6191   (usual  threefold  code  provision). 

In  aid  of  mortgagees — §  6679:  "The  court  may,  by  injunction,  on 
good  cause  shown,  restrain  the  party  in  possession  from  doing  any 
act  to  the  injury  of  real  property  during  the  existence  of  the  lien 
or  foreclosure  of  a  mortgage  thereon  and  until  the  expiration  of  the 
time  allowed  for  redemption." 

Pol.  Code,  §  2673:  Injunction  to  restore  possession  of  mining  prop- 
erty taken  by  force,  fraud  or  threats. 

Tennessee. — Code,   1896. 
§  5161:  Injunction  against  waste. 

§  1004:  "No  injunction  or  petition  for  mandamus  shall  be  granted 
by  any  judge  or  court  in  this  state^  or  aaj  bill  or  petition  for  man* 


i  2G2  EQUITABLE    REMEDIES.  47b 

damns,  alleging  the  illegality  or  unconstitutionality  of  any  of  the 
revenue  laws  of  this  state,  restraining  any  officer  or  officers  charged 
with  the  collection  of  the  public  taxes  of  this  state,  except  upon  a 
final  hearing  of  any  cause  in  the  court  of  last  resort,  if  an  appeal 
should  be  taken  to  that  court." 
§    6256:  Bond   for   injunction. 

Texas.— Sayles'  Eev.  Stats.   (188S),  arts.  2873-2898. 

"Art.  2873.  Writs  of,  granted,  when. — Judges  of  the  district  and 
county  courts  may,  either  in  term  time  or  vacation,  grant  writs  of 
injunction,  returnable  to  said  courts,  in  the  following  cases: 

"1.  Where  it  shall  appear  that  the  party  applying  for  such  writ 
is  entitled  to  the  relief  demanded,  and  such  relief  or  any  part  thereof 
requires  the  restraint  of  some  act  prejudicial  to  the  applicant. 

"2.  Where,  pending  litigation,  it  shall  be  made  to  appear  that  a 
party  is  doing  some  act  respecting  the  subject  of  litigation,  or  threat- 
ens, or  is  about  to  do  some  act,  or  is  procuring  or  suffering  the 
same  to  be  done  in  violation  of  the  rights  of  the  applicant,  which 
act  would   tend   to   render  judgment   ineffectual. 

"3.  In  all  other  cases  where  the  applicant  for  such  writ  may  show 
himself  entitled  thereto   under  the  principles  of   equity." 

"Art.  2874.  None,  against  a  judgment,  except,  etc. — No  injunc- 
tion shall  be  granted  to  stay  any  judgment  or  proceedings  at  law, 
except  so  much  of  the  recovery  or  cause  of  action  as  the  complainant 
shall  in  his  petition  show  himself  equitably  entitled  to  be  relieved 
against,  and  so  much  as  will  cover  the  costs." 

"Art.  2875.  I?ijunciion  to  stay  execution  within  twelve  months, 
unless,  etc. — No  injunction  to  stay  an  execution  upon  any  valid  and 
subsisting  judgment  shall  be  granted  after  the  expiration  of  one 
year  from  the  rendition  of  such  judgment,  unless  it  be  made  to  ap- 
pear that  an  application  for  such  injunction  has  been  delayed  in 
consequence  of  the  fraud  or  false  promises  of  the  plaintiff  in  the 
judgment,  or  unless  for  some  equitable  matter  or  defense  arising 
after  the  rendition  of  such  judgment.  If  it  be  made  to  appear  that 
the  applicant  was  absent  from  the  state  at  the  time  such  judgment 
was  rendered,  and  was  unable  to  apply  for  such  writ  within  the 
time  aforesaid,  such  injunction  may  be  granted  at  any  time  within 
two  years  from  the  date  of  the  rendition  of  the  judgment." 

"Art.  2898.  Principles  of  equity  applicable. — The  principles, 
practice  and  procedure  governing  courts  of  equity  shall  govern  pro- 
ceedings in  injunctions  when  the  same  are  not  in  conflict  with  th« 
provisiona  of  this  title  or  other  law." 

See,  also,  art.  2868  (injunction  pending  divorce  suit,  restraining 
husband   from    disposing   of   property). 

Act  of  May  12,  Aug.  14,  1888  (Supplement  to  Sayles'  Civ.  Stat., 
axt.  2S73a),  is   important.     "The   full  right,  power,  and   remedy  of 


477  IXJUACTIOXS;    ABSTRACT   OF   STATUTES.  §  262- 

injunction  may  be  resorted  to  and  invoked  by  the  state  at  the  in- 
stance of  the  county  or  district  attorney  or  attorney-general,  to  pre- 
vent, prohibit,  or  restrain  the  violation  of  any  revenue  or  penal  law 
of  this  state." 

Utah.— Eev.  Stats.  (18S8),  §§  3057-30G3:  Taken  from  the  Cali- 
fornia Code  of  Civil  Procedure,   §§   525-533,   with  some   changes. 

See,  also,  §  153  (taken  from  North  Dakota  (1895),  §  5584)  as  to 
restraining  foreclosure  by  advertisement  of  chattel  mortgage,  whea 
the  mortgagor  ' '  has  a  legal  counterclaim  or  any  other  valid  defense 
against  the  collection  of  the  whole  or  any  part  of  the  amount  claimed 
to  be  due  on  such  mortgage." 

§  1219:  Injunction  in  statutory  action  by  wife  for  separate  main- 
tenance restraining  husband  from  disposing  of  or  incumbering  real 
estate. 

§  2683.  "Injunction  to  restrain  collection  of  tax. — No  injunc- 
tion shall  be  granted  by  any  court  or  judge  to  restrain  the  collection 
of  any  tax  or  any  part  thereof,  nor  to  restrain  the  sale  of  any  prop- 
erty for  the  non-payment  of  the  tax,  except  where  the  tax,  or  some 
part  thereof  sought  to  be  enjoined,  is  illegal,  or  is  not  authorized 
by  law,  or  the  property  is  exempt  from  taxation.  If  the  payment 
of  a  part  of  a  tax  is  sought  to  be  enjoined,  the  other  part  must  b» 
paid  or  tendered  before  action  can  be  commenced." 

§  3266  (Cal.  Code  Civ.  Proc,  §  706):  To  restrain  waste  during 
period  of  redemption  from  execution. 

§  3281:  Injunction  in  connection  with  receiver,  in  proceeding* 
supplementary   to   execution. 

§  3518  (Cal.  Code  Civ.  Proc,  §  745):  Injunction  to  restrain  waste 
pen-ding  foreclosure  of  a  mortgage,  or  after  a  sale  on  execution,  be- 
fore a  conveyance. 

Vermont. — Stats,  (1894),  §§  954-961  (relating  to  injunction  bonds): 
§  2688  (in  suits  for  divorce,  restraining  husband  from  conveying 
such  portion  of  his  property  as  is  necessary  to  secure  the  alimony. 
See  Foster  v.  Foster,  56  Vt.  540;  Curtis  v.  Gordon,  62  Vt.  340,  495, 
20  Atl.  820;  Noyes  v.  Hubbard,  64  Vt.  302,  35  Am.  St.  Eep. 
928,  23  Atl.  727,  15  L.  E.  A.  394;  Stearns  v.  Stearns,  66  Vt.  187, 
44  Am.  St.  Kep.  836,  28  Atl.  875);  §  3893  (against  abandoning  or 
discontinuing  railroad  stations);  §§  4208,  4209  (on  application  of 
insurance  commissioners);  §§  4522  et  seq.  (to  abate  liquor  nuisances). 

Virginia. — Code  (1887),  §§  3434-3446;  Supplement  (1898),  §  3438a. 
"§  3434.  Injunction  to  protect  plaintiff  in  suit  for  specific  property. 
— An  injunction  may  be  awarded  to  protect  any  plaintiff  in  a  suit 
for  specific  property,  pending  either  at  law  or  in  equity,  against 
injury  from  the  sale,  removal,  or  concealment  of  such  property." 

See,  also,  §  1081  (to  stay  proceedings  in  condemnation  of  land  for 
internal    improvements) ;    §    2495    (to    protect    lien  for   advance   on 


f   2(;2  EQUITABLE    EEMEDIES.  478 

crops) ;  §  36-56  (to  restrain  sale  of  exempt  property,  or  garnishment 
of  wages,  of  a  "householder"). 

Washington.— Ballinger '8  Codes  and  Statutes  (1897),  §§  5431-5452. 

§  5432:   Injunction,  when  granted.     Taken  from  Indiana,  §  1148. 

"§  5433.  Injunction  for  malicious  erection  of  structures.  An  injunc- 
tion may  be  granted  to  restrain  the  malicious  erection,  by  any  owner 
or  lessee  of  land,  of  any  structure  intended  to  spite,  injure  or  annoy 
an  adjoining  proprietor.  And  where  any  owner  or  lessee  of  land 
has  maliciously  erected  such  a  structure  with  such  intent,  a  manda- 
tory injunction  will  lie  to  compel  its  abatement  and  removal." 

§  5661:  Injunction  in  action  for  nuisance,  when  the  remedy  of  war- 
rant to  abate  the  nuisance  is  inadequate. 

"§  5658.  Injunction  to  prevent  waste.  When  any  two  or  more  per- 
sons are  opposing  claimants  under  the  laws  of  the  United  States  to 
any  land  in  this  state,  and  one  is  threatening  to  commit  upon  such 
land  waste  which  tends  materially  to  lessen  the  value  of  the  in- 
heritance, and  which  cannot  be  compensated  by  damages,  and  there 
is  imminent  danger  that  unless  restrained  such  waste  will  be  com- 
mitted, the  party,  on  filing  his  complaint  and  satisfying  the  court 
or  judge  of  the  existence  of  the  facts,  may  have  an  injunction  to 
restrain  the  adverse  party."  See  Arment  v.  Hensel,  5  Wash.  152, 
154,  31  Pac.  464;  McBride  v.  Board  of  Commrs.,  44  Fed.  17. 

Injunction  in  proceedings  supplemental  to  execution:  See  §  5323. 

Injunction  in  favor  of  party  seeking  to  vacate  or  modify  a  judg- 
ment or  order,  suspending  proceedings  or  the  whole  or  part  thereof: 
See   §   5160. 

§  6119:  Kestraining  order  against  executor  or  administrator,  pend- 
ing application  to  prove  a  lost  or  destroyed  will. 

"§  5678.  Tender  condition  precedent  to  action  to  enjoin  lax  collec- 
tion. Hereafter  no  action  or  proceeding  shall  be  commenced  or 
instituted  in  any  court  of  this  state  to  enjoin  the  sale  of  any  prop- 
erty for  taxes,  or  to  enjoin  the  collection  of  any  taxes,  or  for  the 
recovery  of  any  projjerty  sold  for  taxes,  unless  the  person  or  corpora- 
tion desiring  to  commence  or  institute  such  action  or  proceeding 
shall  first  pay,  or  cause  to  be  paid,  or  shall  tender  to  the  ofiicer  en- 
titled under  the  law  to  receive  the  same,  all  taxes,  penalties,  inter- 
est and  costs  justly  due  and  unpaid  from  such  person  or  corporation 
on  the  property  sought  to  be  sold  or  recovered." 

"§  5679:  What  complaint  must  state.  In  all  actions  to  enjoin  the 
collection  of  any  tax,  and  in  all  actions  for  the  recovery  of  any 
property  sold  for  taxes,  the  complainant  must  state  and  set  forth 
sjjecially  in  his  complaint  the  tax  that  is  justly  due,  with  penalties, 
interest  and  costs,  the  tax  alleged  to  be  illegal,  and  point  out  the 
illegality  thereof;  that  the  taxes  for  that  and  previous  years  have 
been  paid."  .... 


479  INJUNCTIONS;   ABSTRACT   OF   STATUTES.  i  26E 

**§'  5680,  Construction.  The  provisions  of  sections  5678  and  5679 
shall  be  construed  as  imposing  additional  conditions  upon  the  power 
of  the  court  or  judge  in  granting  injunctions  to  those  already  im- 
posed." 

§  3714:  Mandatory  injunction  authorized  in  proceedings  to  es- 
tablish diking  districts;  §  3754,  in  proceedings  to  establish  drainage 
districts. 

West  Virginia.— Code    1899,  c.  CXXXIII. 

Page  889:  "An  injunction  may  be  awarded  to  enjoin  the  sale  of 
property  set  apart  as  exempt  in  the  case  of  a  husband  or  parent, 
under  chapter  forty-one,  or  to  protect  any  plaintiff  in  a  suit  for 
specific  property,  pending  either  at  law  or  in  equity,  against  injury 
from  the  sale,  removal  or  concealment  of  such  property." 

Page   890:    Injunction  bond. 

Chapter  XCVI,  p.  762;  Injunction  may  issue  to  prevent  sale  of 
property  for  usurious  debt. 

Page  1134:  Injunctions  against  waste  of  natural  gas. 

Wisconsin,— Stats.    1898. 

§  2773:  Writ  of  injunction  is  abolished.  "The  injunction  pro- 
vided by  law  is  a  command  to  refrain  from  a  particular  act." 

§  2774:  "Where  it  shall  appear  by  the  complaint  that  the  plain- 
tiff is  entitled  to  the  judgment  demanded  and  such  judgment,  or 
any  part  thereof,  consists  in  restraining  the  commission  or  con- 
tinuance of  some  act  the  commission  or  continuance  of  which,  during 
the  litigation,  would  produce  injury  to  the  plaintiff;  or  when,  during 
the  litigation,  it  shall  appear  that  the  defendant  is  doing,  or  threat- 
ens, or  is  about  to  do,  or  is  procuring  or  suffering  some  act  to  be 
done  in  violation  of  plaintiff's  rights  respecting  the  subject  of  the 
action  and  tending  to  render  the  judgment  ineffectual,  a  temporary 
injunction  may  be  granted  to  restrain  such  act.  And  when,  during 
the  pendency  of  an  action,  it  shall  appear  by  affidavit  that  the  de- 
fendant threatens  or  is  about  to  remove  or  dispose  of  his  property 
with  intent  to  defraud  his  creditors,  a  temporary  injunction  may 
be  granted  to  restrain  such  removal  or  disposition." 

§  2775:   When  granted  to  defendant. 

§  2778:    Bond    for    injunction. 

§  2780:  Not  granted  to  suspend  ordinary  business  of  corporation 
without  notice. 

§  3170:  "The  circuit  courts  have  jurisdiction  of  actions  for  waste 
and  may  grant  injunctions  to  stay  or  prevent   waste." 

§  3180:  "The  circuit  courts  shall  have  jurisdiction  of  actions  to 
recover  damages  for  and  to  abate  private  nuisances  or  a  public  nui- 
sance from  which  any  person  suffers  a  private  or  special  injury  pecu- 
liar to  himself,  so  far  as  necessary  to  protect  the  rights  of  such  per- 
son, and  to  grant  injunctions  to  prevent  the  same;  and  in  case  such 
nuisance  may  work  an  irreparable  injury,  interminable  litigation,  a 


{  262  EQUITABLE    REMEDIES.  480 

multiplicity  of  actions,  or  either,  or  the  injury  is  continuous  or 
constantly  recurring,  or  there  is  not  an  adequate  remedy  at  law^ 
or  the  injury  is  not  susceptible  of  adequate  compensation  in  dam- 
ages at  law,  then  an  action  in  equity  may  be  maintained  and  an  in- 
junction issued  therein,  and  an  equitable  action  may  be  brought  be- 
fore the  nuisance  or  the  infringement  of  plaintiff's  right  is  estab- 
lished at  law." 

Wyoming.— Eev,  Stats.  1899. 

§  4038:  "The  injunction  provided  by  this  chapter  is  a  command 
to  refrain  from  a  particular  act;  it  may  be  the  final  judgment  in  an 
action  or  may  be  allowed  as  a  provisional  remedy;  and  when  so  al- 
lowed it  shall  be  by  order." 

§  4039:  "When  it  appears  by  the  petition  that  the  plaintiff  is  en- 
titled to  the  relief  demanded,  and  such  relief,  or  any  part  thereof^ 
consists  in  restraining  the  commission  or  continuance  of  some  act, 
the  commission  or  continuance  of  which,  during  the  litigation,  would 
produce  great  or  irreparable  injury  to  the  plaintiff,  or  when,  during 
the  litigation,  it  appears  that  the  defendant  is  doing,  or  threatens 
or  is  about  to  do,  or  is  procuring  or  suffering  to  be  done,  some  act 
ia  violation  of  the  plaintiff's  rights,  respecting  the  subject  of  the 
action,  and  tending  to  render  the  judgment  ineffectual,  a  temporary 
order  may  be  granted  restraining  such  act;  and  such  order  may  also 
be  granted  in  any  case  where  it  is  specially  authorized  by  statute." 
§  4041:  Court  may  require  notice  of  application, 
§  4043:  Undertaking  on  injunction, 

§  4053:  "A  defendant  may  obtain  an  injunction  upon  an  answer 
is  the  nature  of  a  counterclaim,  and  he  shall  proceed  in  the  man- 
ner prescribed  in  this  chapter," 

§  4172:  "District  courts  shall  have  jurisdiction  to  enjoin  the  ille- 
gal levy  of  taxes  and  assessments,  or  the  collection  of  either,  and  of 
actions  to  recover  back  such  taxes  or  assessments  as  have  been  col- 
lected, without  regard  to  the  amount  thereof;  but  no  recovery  shall 
be  had  unless  the  action  be  brought  within  one  year  after  the  taxes 
or  assessments  are  collected." 

§  4175:  "If  the  plaintiff,  in  an  action  to  enjoin  the  collection  of 
taxes  or  assessments  admit  a  part  thereof  to  have  been  legally 
levied,  he  must  first  pay  or  tender  the  sum  admitted  to  be  due;  if  an 
order  of  injunction  be  allowed,  an  undertaking  must  be  given  as  in 
other  cases;  and  the  injunction  shall  be  a  justification  of  the  ofiicer 
charged  with  the  collection  of  such  taxes  or  assessments  for  not  col- 
lecting the  same," 

S  3802:  "The  party  seeking  to  vacate  or  modify  a  judgment  or 
order  may  obtain  an  injunction  suspending  proceedings  on  the 
whole  or  a  part  thereof,  which  injunction  may  be  granted  by  the 
eourt  or  any  judge  thereof  when  it  is  rendered  probable  by  affidavit 
or  by  exhibition  of  the  record  that  the  party  is  entitled  to  have 
SNoh  judgment  or  order  vacated  or  modified." 


481  INJUNCTIONS;    GENERAL    PRINCIPLES.  §  263 

^  263.  Fundamental  Principle.  —  "In  determining 
whetlier  an  injunction  will  be  issued  to  protect  any 
right  of  property,  to  enforce  any  obligation,  or  to  pre- 
vent any  wrong,  there  is  one  fundamental  principle  of 
the  utmost  importance,  which  furnishes  the  answer  to 
any  questions,  the  solution  to  any  difficulties  which 
may  arise.  This  principle  is  both  affirmative  and  neg- 
ative, and  the  affirmative  aspect  of  it  should  never  be 
lost  sight  of,  any  more  than  the  negative  side.^  The 
general  principle  may  be  stated  as  follows:  Wherever 
a  right  exists  or  is  created,  by  contract,  by  the  owner- 
ship of  property  or  otherwise,  cognizable  by  law,  a  tio- 
Uition  of  that  right  icill  be  prohibited^  unless  there  are 
other  considerations  of  policy  or  expediency  which  for- 
bid a  resort  to  this  prohibitive  remedy.  The  restrain- 
ing poicer  of  equity  extends,  therefore,  through  the 
ichole  range  of  rights  and  duties  ichich  are  recognized 
by  the  law,  and  would  be  applied  to  every  case  of  in- 
tended molation,  were  it  not  for  certain  reasons  of  ex- 
pediency and  policy  ivhich  control  and  limit  its  exer- 
cise.* This  jurisdiction  of  equity  to  prevent  the  com- 
mission of  wrong  is,  however,  modified  and  restricted 
by  considerations  of  expediency  and  of  convenience 
which  confine  its  application  to  those  cases  in  which 
the  legal  remedy  is  not  full  and  adequate.  Equity  will 
not  interfere  to  restrain  the  breach  of  a  contract,  or 

8  "A  comparison  of  the  English  and  American  reports  will  show 
that  our  courts  have  dwelt  too  much  on  the  negative  side  of  this 
principle,  and  have  almost  ignored  its  affirmative  aspect.  While  the 
English  judges  have  gradually  but  steadily  enlarged  the  scope  of  the 
injunction,  the  tendency  of  the  American  decisions  has  been  to  nar- 
row it  even  within  the  well-established  limits  of  the  jurisdiction.  If 
'an  ounce  of  prevention  is  worth  a  pound  of  cure,'  this  tendency  is 
clearly  opposed  to  the  best  interests  of  society":  Pom.  Eq.  Jur.,  } 
1338,   and  note. 

4  Quoted  in  Tuchman  v.  "Welch,  42  Fed.  548,  559. 
Equitable  Kemediea,  VoL  1—31 


S  204  EQUITABLE    REMEDIES.  482 

the  comniission  of  a  tort,  or  the  violation  of  any  right, 
when  the  legal  remedy  of  compensatory  damages  would 
be  complete  and  adequate.  The  incompleteness  and 
inadequacy  of  the  legal  remedy  is  the  criterion  which, 
under  the  settled  doctrine,  determines  the  right  to  the 
equitable  remedy  of  injunction."^ 

§  264.  Preliminary  or  Interlocutory  Injunctions. — Prcliiri- 
inary  or  interlocutory  injunctions  are  granted  to  pre- 
serve the  property  in  statu  quo  pending  the  determina- 
tion of  the  suit.^  The  right  to  such  relief  depends  upon  a 
showing  of  irreparable  injury,  and  rests  within  the  sound 
discretion  of  the  court.''     It  is  not  necessary  that  the 

5  Pom.  Eq.  Jiir.,  §  1338.  See,  also,  Watson  v.  Sutherland,  5  "Wall. 
74,  18  L.  ed.  580;  North  v.  Peters,  138  U.  S.  271,  11  Sup.  Ct.  346,  34 
L.  ed.  936;  Johnson  v.  Conn.  Bank,  21  Conn.  148;  Powell  v.  Foster, 
39  Ga.  790;  Mayor  &  Aldermen  of  Jersey  City  v.  Gardner,  33  N.  J. 
Eq.  622. 

"The  general  eflfect  produced  by  some  text-books  and  judicial 
opinions  might  lead  the  reader  to  suppose  that  the  main  object  of 
the  writers  or  the  judges  was  to  show  when  injunctions  could  not 
be  granted.  The  full  force  and  effect  of  this  most  beneficial  rem- 
edy, and  the  freedom  with  which  it  is  granted  by  courts  of  the  high- 
est authority,  can  only  be  ascertained  by  an  actual  examination  of 
the  decided  cases":   Pom.  Eq.  Jur.,   §   1338,  note. 

«  "The  controlling  reason  for  the  existence  of  the  right  to  issue  a 
preliminary  injunction  is  that  the  court  may  thereby  prevent  such 
a  change  of  the  conditions  and  relations  of  persons  and  property 
during  the  litigation  as  may  result  in  irremediable  injury  to  some  of 
the  parties  before  their  claims  can  be  investigated  and  adjudicated": 
City  of  Newton  v.  Levis,  79  Fed.  715,  25  C.  C.  A.  561,  49  U.  S.  App. 
266,  per  Sanborn,  Cir.  J.  See,  also,  Blount  v.  Societe  Anonyme  du 
Filtre,  53  Fed.  98,  6  U.  S.  App.  335,  3  C.  C.  A.  455. 

7  Southern  Pac.  Co,  v.  Earl,  82  Fed;  691,  27  C,  C.  A.  185;  Sanitary 
Keduction  W^orks  v.  California  Eeduction  Co.,  94  Fed.  693;  Strasser 
V.  Moonelis,  108  N.  Y.  611,  15  N.  E.  730  (not  reviewable  unless  com- 
plaint fails  to  state  grounds  for  final  relief);  Ward  v.  Sweeney,  106 
Wis.  44,  82  N.  W.  169  ("That  discretion  is  of  the  broadest,  and  is 
seldom  interfered  with");  Eeddall  v.  Bryan,  14  Md.  444,  74  Am.  Dec. 
550;  North  Carolina  R.  Co.  v.  Drew,  3  Woods,  674,  Fed.  Gas.  No. 
17,433. 


4S3  INJUNCTIONS;    GENERAL    PRINCIPLES.  §  264 

court  be  satisfied  tliat  the  plaintiff  will  ceilainlj  prevail 
on  the  final  hearing;  "a  probable  right,  and  a  probable 
danger  that  such  right  will  be  defeated,  without  the 
special  interposition  of  the  court,"  is  all  that  need  be 
shown.^  When  there  is  grave  doubt,  however,  as  to  the 
complainant's  right,  preliminary  relief  will  generally  be 
denied.®  It  should  not,  save  in  exceptional  circum- 
stances, be  used  for  the  purpose  of  taking  property  out 
of  the  possession  of  one  party  and  giving  it  to  another.^® 

' '  The  final  injunction  is  in  many  cases  matter  of  strict  right, 
and  granted  as  a  necessary  consequence  of  the  decree  made  in  the 
cause.  On  the  contrary,  the  preliminary  injunction,  before  answer, 
is  a  matter  resting  altogether  in  the  discretion  of  the  court,  and 
ought  not  to  be  granted  unless  the  injury  is  pressing  and  the  delay 
dangerous":  New  York  Printing  &  Dyeing  Establishment  y.  Fitch, 
I    Paige,   97. 

8  Georgia  v.  Brailsford,  2  Dall.  402,  1  L.  ed.  433;  Southern  Pac.  Co. 
V.  Earl,  82  Fed.  691,  27  C.  C.  A.  185;  Sanitary  Reduction  Works  y. 
California  Reduction  Co.,  94  Fed.  693;  Great  "Western  Ry.  Co.  t. 
Birmingham  Ry.  Co.,  2  Phill.  Ch.  602.  "The  rule  is  well  settled 
that  evidence  sufficient  to  authorize  a  granting  of  a  preliminary 
injunction  or  to  warrant  the  refusal  thereof  may  not  be  sufficient 
to  maintain  a  like  decision  upon  a  final  trial  of  the  action  on  its 
merits":  Colusa  Parrot  Min.  &  S.  Co.  v.  Barnard,  28  Mont.  11,  72  Pae. 
45.  Of  course  a  preliminary  injunction  should  be  denied  when  the 
bill  or  complaint  states  no  ground  for  final  relief:  McHenry  v.  Jewett, 
90  N.  Y.  58. 

9  Home  Ins.  Co.  v.  Nobles,  63  Fed.  642;  Mitchell  v.  'Colorado 
Fuel  &  Iron  Co.,  117  Fed.  723;  Huntington  v.  City  of  New  York,  118 
Fed.  683  (complainant  must  show  reasonable  probability  of  ultimate 
success);  Newark  Aqueduct  Board  v.  Passaic,  46  N.  J.  Eq.  552,  20 
Atl.  54,  22  Atl.  55  (doubtful  whether  nuisance  existed);  Atlantic 
C.  W.  W.  Co.  V.  Consumers'  W.  Co.,  44  N.  J.  Eq.  527,  15  Atl.  581; 
Roberts  v.  Scull,  58  N.  J.  Eq.  396,  43  Atl.  583;  Hicks  v,  American 
Natural  Gas  Co.,  207  Pa.  St.  570,  57  Atl.  55.  See,  also,  Connolly  v. 
Van  Wyck,  35  Misc.  Rep.  746,  72  N.  Y.  Supp.  382;  McHenry  v.  Jewett, 

90  N.  Y.  58. 

10  "Possession  is  prima  facie  evidence  of  rightful  title,  because  it 
ia  one  of  the  elements  of  title,  is  sacred,  and  no  court  can  in  any 
form  of  proceeding  take  it  from  a  man  without  a  hearing,  without 
overthrowing  the  maxim  that  no  man  shall  be  condemned  in  person 


I  264  EQUITABLE    REMEDIES.  484 

In  the  exercise  of  its  discretion,  the  court  may  consider 
the  injury  to  be  done  the  adverse  parties  by  its  action; 
and  if  the  questions  involved  are  grave  and  difficult, 
and  the  injury  to  the  moving  party  will  be  immediate, 
certain,  and  great  if  relief  is  denied,  while  the  loss  or 
inconvenience  to  the  opposing  party  will  be  compara- 
tively small  if  it  is  granted,  a  preliminary  injunction 
may  issue.^^  On  the  other  hand,  where  the  injury  to 
the  complainant  will  not  be  irreparable  from  a  refusal, 
while  the  defendants  might  suffer  great  injury  for 
which  they  will  be  without  adequate  remedy  from  the 
granting  of  the  writ,  it  will  be  refused.^^ 

A  distinction  is  made  in  some  jurisdictions  between 
a  restraining  order  issued  on  ex  parte  application,  and 
a  preliminary  injunction  issued  upon  an  order  to  show 
cause.  It  is  said  that  the  former  should  not  issue  ''ex- 
cept on  a  moral  certainty  of  an  irreparable  injury  if 
it  be  refused."*^  In  many  of  the  states  the  right  to  pre- 
liminary relief  is  governed  by  statute. 

or  deprived  of  property  without  a  day  in  court  and  due  process": 
Bettman  v.  Harness,  42  W.  Va.  433,  26  S.  E.  271,  36  L.  E.  A.  566, 
per  Brannon,  J.  See,  also,  Cosmos  Exploration  Co.  v.  Gray  Eagle 
Oil  Co.,  104  Fed.  20;  State  v.  Graves,  66  Neb.  17,  92  N.  W.  144;  For- 
man  v.  Healey,  11  N.  D.  563,  93  N.  W.  866;  Farmers'  E.  Co.  v.  Eeno 
O.  C.  &  P.  Ey.  Co.,  53  Pa.  St.  224. 

U  Allison  V.  Corson,  88  Fed.  581,  32  C.  C.  A.  12;  City  of  Newton 
V.  Levis,  79  Fed.  715,  49  U.  S.  App.  266,  25  C.  C.  A.  161;  Cohen  v, 
Delavina,  104  Fed.  946;  Denver  &  R.  G.  E.  Co.  v.  United  States,  124 
Fed.  156,  59  C  C.  A.  579;  Packard  v.  Thiel  College  (Pa.),  56  Atl.  801). 

12  New  York  Printing  &  Dyeing  Establishment  v.  Fitch,  1  Paige, 
97;  Ogden  v.  Kip,  6  Johns.  Ch.  160.  See,  also,  Booraem  v.  North 
Hudson  Co.  E.  Co.,  40  N.  J.  Eq.  557,  5  Atl.  106  (no  urgent  necessity). 
For  specific  rules  as  to  the  use  of  preliminary  injunctions,  see  the 
chapters  following,  passim;  especially  the  chapters  on  Trespass, 
Nuisance,  Patent  Rights,  Mandatory  Injunctions,  etc. 

13  Eyan  v.  Seaboard  &  E.  E.  Co.,  89  Fed.  385  ("a  restraining 
order  in  anticipation  of  the  hearing  on  a  motion  for  an  injunction 
is  a  serious  exercise  of  power.  It  should  not  be  granted  except  upon 
the   moral   certainty   of   an   irreparable   injury,   if  it   be   refused.     It 


485  INJUNCTIONS- EQUITABLE  INTEKESTS.  §  263 

§  265.  Injunctions  to  Protect  Purely  Equitable  Estates  or 
Interests,  and  in  Aid  of  Purely  Equitable  Remedies. — "The 
jurisdiction  to  grant  injunctions  restraining  acts  in  vio- 
lation of  trusts  and  fiduciary  obligations,  or  in  viola- 
tion of  any  other  purely  equitable  estates,  interests,  or 
claims  in  and  to  specific  property,  is  really  commensu- 
rate with  the  equitable  remedies  given  to  enforce  trusts 
and  fiduciary  duties,  or  to  establish  and  enforce  any 
other  equitable  estates,  interests,  or  claims,  with  respect 
to  specific  things,  whether  lands,  chattels,  securities, 
or  funds  of  money,  or  to  relieve  against  mistake,  or 
fraud  done  or  contemplated  with  respect  to  such  things. 
In  all  such  cases  the  question  whether  the  remedy  at 
law  is  adequate  cannot  arise;  much  less  can  it  be  the 
criterion  by  which  to  determine  whether  an  injunction 
can  be  granted;  for  there  is  no  remedy  at  law.  Since 
the  estate,  interest,  or  claim  of  the  complainant  is 
purely  equitable,  it  is  exclusively  cognizable  by  equity; 
and  if  its  existence  is  shown,  a  court  of  equity  not  only 
has  the  jurisdiction,  but  is  bound  to  grant  every  kind 
of  remedy  necessary  to  its  complete  establishment, 
protection,  and  enforcement  according  to  its  essential 
nature.  Many  breaches  of  trust  are  of  such  a  nature 
that,  if  accomplished,  they  would  completely  defeat  the 
right  of  the  beneficiary  to  the  specific  trust  property. 
The  equitable  reliefs  against  mistake  or  fraud  with  re- 
spect to  specific  equitable  property,  and  the  equitable 
remedies  of  all  kinds  to  enforce  trusts,  express  or  by 
operation  of  law,  and  fiduciary  duties  concerning  spe- 
cific property,  and  to  enforce  any  other  equitable  es- 
tate, interest,  lien,  or  right  in  or  over  specific  property, 
would  be  of  comparatively  little  practical  value,  unless 

should  not  be  continued  when  it  be  made  to  appear  that  such  a 
result  is  not  imminent.")  For  a  statement  of  the  distinction,  see 
Wetzstein  v.  Boston  &  M.  Consol.  C.  &  S.  M.  Co.,  25  Mont.  135,  63 
Pac.    1043,    1044. 


i  Ma  EQUITABLE    REMEDIES.  •tse 

the  court  could  by  injunction  restrain  the  alienation, 
transfer,  or  encumbrance  of  such  property,  and  all 
other  modes  of  dealing  with  it  which  would  prejudice 
the  rights  of  the  complainant,  and  prevent  him  from 
acquiring  the  title,  or  from  enjoying  his  estate,  or  from 
enforcing  his  claim,  or  from  receiving  the  full  benefits 
of  his  final  relief.^ ^  It  may  therefore  be  stated  as  a 
general  proposition,  that  whenever  the  equitable  relief 
against  mistake  or  fraud  with  respect  to  specific  prop- 
erty, or  the  equitable  remedy  of  enforcing  trusts  or 
fiduciary  duties  concerning  specific  property,  or  of  en- 
forcing any  other  equitable  estates,  interests,  or  claims 
in  or  to  specific  property,  requires  the  aid  of  an  injunc- 
tion, a  court  of  equity  has  jurisdiction,  and  will  exer- 
cise that  jurisdiction,  to  grant  an  injunction,  either 
l^ending  the  suit  or  as  a  part  of  the  final  decree,  to  re- 
strain a  breach  of  trust  or  of  fiduciary  duty,  or  to  re- 
strain an  alienation,  transfer,  assignment,  encumbrance, 
or  other  kind  of  dealing  with  the  property,  which  would 
be  in  violation  of  the  trust  or  fiduciary  duty,  or  in 
fraud  of  the  complainant's  rights,  and  which  would 
therefore  interfere  with  and  prejudice  the  ultimate 
remedies  to  which  he  may  be  entitled  with  respect  to 
such  property.  The  particular  instances  to  which  this 
doctrine  is  applied  are  almost  numberless,  and  extend 
through  the  entire  range  of  equitable  remedies  against 
mistake  and  fraud,  or  to  enforce  trusts  and  fiduciary 

14  "It  is  true  that  in  suits  concerning  land,  the  statute  authorizing 
a  notice  of  lis  pendens  to  be  filed  affords  some  security  to  the  com- 
plainant against  transfers  and  encumbrances  pending  suit.  But 
this  statute  does  not  affect  the  truth  nor  generality  of  the  prop- 
osition contained  in  the  text.  At  the  utmost,  it  only  shows  that 
in  such  cases  '  the  aid  of  an  injunction  is  not  required. '  But  the  notice 
of  lis  pendens  is,  at  best,  only  a  partial  relief;  it  does  not  prevent  a 
transfer;  it  does  not  even  obviate  the  necessity  of  an  injunction  in 
many  suits  concerning  land;  and  it  does  not  generally  extend  to  other 
•nits  at  all":  Pom.  Eq.  Jur.,  §  1339,  and  note. 


48T  INJUNCTIONS— EQUITABLE  INTEBEST3.  f  265 

duties,  or  to  establish  and  enforce  other  equitable  es- 
tates, interests,  liens,  and  primary  rights  in  and  to 
specific  property  of  any  kind  or  form."^^ 

§  266.  Instances;  to  Restrain  Breaches  of  Trust. — Insults 
by  a  beneficiary  against  his  trustee,  an  injunction,  if 
needed,  will  be  granted  as  a  matter  of  course.^^  Thus, 
a  wrongful  alienation  or  encumbrance  of  land  which 
is  the  subject-matter  of  the  trust,^"^  or  a  payment  of 
money  in  violation  of  the  trust,^*  or  a  sale  in  violation 
of  conditions  imposed  by  the  instrument  creating  the 
trust,^^  or  a  sale  with  conditions  attached  by  the  trustee 
which  are  unreasonable  and  tend  to  depreciate  the  prop- 
erty,^'*  or  waste  and    mismanagement,^^   may    be    en- 

18  Pom.  Eq.  Jur.,  §  1339. 

16  Pom.  Eq.  Jur.,  §■  1340,  and  note.  See  Williams  v.  Tozer,  185  Pa. 
St.  302,  64  Am.  St.  Eep.  650  (restraining  acts  in  excess  of  his  powers). 

17  McCreary  v.  Gewinner,  103  Ga.  528,  29  S.  E.  960;  Lee  v.  Simp- 
son, 37  Fed.  12,  2  L.  E.  A.  659  (threatened  conveyance  to  state;  pre- 
liminary injunction).  To  restrain  sale  of  trust  property  on  execu- 
tion against  the  trustee:  Hawkins  v.  Willard  (Tex.  Civ.  App.),  3S 
S.  W.  365,  citing  Pom.  Eq.  Jur.,  §§  1339,  1340. 

18  Reeve  v.  Perkins,  2  Jacob  &  W.  390;  State  v.  Maury,  2  Del.  Ch. 
141;  Drake  v.  Wild,  65  Vt.  611,  27  Atl.  427  (against  payment  of 
legacies  to  the  detriment  of  the  trust  estate  commingled  by  the 
executor  with  other  moneys);  Coleman  v.  McGrew  (Neb.),  99  N.  W. 
663.  But  when  the  defendants,  to  whom  money  has  been  paid  in 
alleged  breach  of  trust,  do  not  admit  the  trust,  and  its  existence 
is  the  question  to  be  decided  at  the  hearing,  an  interlocutory  in- 
junction is  not  proper:  Bank  of  Turkey  v.  Ottoman  Co.,  L.  E.  2  Eq. 
366. 

19  Pool  V.  Potter,  63  111.  533  (sale  without  giving  the  bond  re- 
quired by  the  deed  of  trust). 

20  Dance  v.  Goldingham,  L.  E.  8  Ch.  902  (whether  such  effect  ia 
actually   produced   or   not). 

21  Cohn  V.  Morris,  70  Ga.  313  (assignee  for  benefit  of  creditors). 
In  such  cases  a  receiver  is  often  appointed:  Id.;  ante,  §§  89,  90.  An  in- 
junction will  be  continued  until  the  hearing  to  retain  control  of  & 
trust  fund  in  dispute,  where  the  plaintiff  in  the  action  seeks  to  have 
a  judgment  reformed  and  the  validity  of  an  assignment  determined, 


f  267  EQUITABLE    EEMEDIES.  488 

joined.  The  creator  of  the  trust,  at  least  of  a  charita- 
ble trust,  may  sometimes  be  entitled  to  the  relief;  thus, 
it  is  held  that  the  founder  of  a  charity  may  restrain  the 
diversion  of  the  property  donated  from  the  charitable 
uses  for  which  it  was  given.^^ 

§  237.  To  Restrain  Violations  of  Confidence. — Anal- 
ogous to  the  jurisdiction  to  restrain  breaches  of  trust 
is  the  jurisdiction,  well  established  but  somewhat  un- 
determined in  its  limits,  to  restrain  a  person  from  the 
disclosure  or  unfair  use  of  knowledge  which  has  come 
to  him  in  the  course  of  a  confidential  employment  by 
another.  A  common  instance  in  England  is  where  a 
solicitor  is  restrained  from  communicating  to  a  party 
who  is  suing  a  former  client,  documents  or  matters  of 
evidence  which  have  come  to  his  possession  or  knowl- 
edge in  the  course  of  his  employment  for  such  client ^^ 
So,  a  confidential  clerk  or  agent,  who  uses  the  informa- 
tion which  he  obtained  in  the  course  of  his  employment 

alleging  that  the  same  was  procured  by  fraud  which  was  denied  in 
the  answer,  and  where  the  testimony  bearing  upon  the  question  is 
conflicting:  Morris  v.  Willard,  84  N.  C.  293. 

22  Mills  V.  Davison,  54  N.  J.  Eq.  659,  55  Am.  St.  Eep.  594,  35  Atl. 
1072,  35  L.  E.  A.  113. 

23  Lewis  V.  Smith,  1  Macn.  &  G.  417  (the  subsequent  client  also 
restrained  from  making  use  of  such  documents  or  evidence) ;  Davii 
V.  Clough,  8  Sim.  262;  Little  v.  Kingswood  Colliery  Co.,  L.  E.  20 
Ch.  D.  733  (the  jurisdiction  "is  founded  upon  the  principle  that  a 
man  ought  to  be  restrained  from  doing  any  act  contrary  to  the  duty 
which  he  owes  to  another";  and  "will  be  exercised  at  tho  instance 
of  the  former  client  irrespective  of  the  question  whether  the  solici- 
tor was  discharged  by  him  or  discharged  himself,  whenever  the 
transaction  in  reference  to  which  the  injunction  is  sought  so  flows 
out  of  or  is  connected  with  that  in  which  the  solicitor  was  formerly 
retained  that  the  same  matter  of  dispute  will  probably  arise").  On 
the  same  principle,  it  was  held  that  a  plaintiff  who  obtained  informa- 
tion from  the  production  of  documents  by  his  adversary  was  not  at 
liberty  to  make  it  public,  and  an  injunction  would,  if  necessary,  be 
granted  to  restrain  him:  Williams  v.  Prince  of  Wales  Life  etc.  Co., 
23  Beav.  340. 


489  INJUNCTIONS— EQUITABLE  INTERESTS.  §   208 

for  the  purpose  of  securing,  for  himself,  without  his  em- 
ployer's knowledge,  the  renewal  of  the  lease  of  his  em- 
ployer's business  premises,  which  is  about  to  expire,  and 
for  which  his  employer  is  negotiating,  may  be  enjoined 
from  proceeding  to  recover  the  premises.^''  Partly  on 
the  ground  of  breach  of  confidence  was  rested  the  de- 
cision in  a  striking  recent  English  case,  where  a  pho- 
tographer was  restrained  from  exhibiting  and  selling 
to  the  public  copies  of  the  photographs  of  a  woman 
which  he  had  taken  for  her  own  use.^^ 

§  268.  Same ;  Disclosure  of  Trade  Secrets. — An  important 
application  of  the  principle  of  the  last  section  is  seen 
in  the  well-established  jurisdiction^^  to  enjoin  the  dis- 
closure or  use  of  secrets  of  trade,  such  as  secret  pro- 
cesses of  manufacture,  communicated  to  one  in  the 
course  of  a  confidential  employment  Different  grounds 
have,  indeed,  been  assigned  for  the  exercise  of  the  ju- 
risdiction;-^  in  some  cases  it  has  been  referred  to  a 

24  Gower  v.  Andrew,  59  Cal.  119,  43  Am.  Eep.  242.  On  a  familiar 
principle,  the  agent  is  a  constructive  trustee  for  the  principal  in 
Bueh  a  case,  and  may  be  ordered  to  convey:  See  Pom.  Eq.  Jur.,  § 
1050. 

25  Pollard  V.  Photographic  Co.,  40  Ch.  D.  345.  The  decision  was 
based  partly  on  the  ground  of  breach  of  an  implied  contract  not  to 
use  the  photographic  negative  for  such  purposes.  There  is  nothing 
in  the  case  to  support  the  so-called  "right  of  privacy";  as  to  which 
see  post,  c.  29. 

26  In  the  earliest  reported  case  on  the  subject,  Newbery  v.  James, 
2  Mer.  446,  Lord  Eldon  refused  to  enjoin  a  breach  of  an  agreement 
not  to  impart  a  secret,  unpatented  process  of  manufacture,  on  the 
ground  that  the  court  could  not,  without  having  it  disclosed,  as- 
certain whether  it  had  been  infringed;  but  the  same  chancellor  in  a 
later  case  unhesitatingly  granted  an  injunction  against  one  who  had 
obtained  a  knowledge  of  such  a  secret  by  a  breach  of  trust:  Yovatt 
V.  Winyard,  1  Jacob  &  W.  394;  and  see  Williams  v.  Williams,  3 
Mer.  157;  and  the  jurisdiction  has  since  been  undoubted  in  England, 
and  in  the  United  States,  save  for  the  case  of  Denning  v.  Chapman, 
11  How.  Pr.  (N.  Y.)  383. 

27  Morrison  v.  Moet,  9  Hare,  241. 


§  268  EQUITABLE    REMEDIES.  49a 

right  of  property  in  the  secret  unpatented  process — 
not  an  exclusive  right  to  it  as  against  the  public,  or 
against  those  who  in  good  faith  acquire  knowledge  of  it, 
but  a  property  "which  a  court  of  chancery  will  protect 
against  one  who  in  violation  of  contract  and  breach  of 
confidence  undertakes  to  apply  it  to  his  own  use,  or  to 
disclose  it  to  third  parties-''^^  In  other  cases  the  juris- 
diction has  been  referred  to  breach  of  an  implied  con- 
tract inferred  from  the  nature  of  the  employment  ;2«^ 
in  others  it  has  been  treated  as  founded  upon  trust  or 
confidence  ;3<^  more  often  it  is  spoken  of  as  resting  on 
both  of  the  last  two  grounds  combined.^^     Not  only  the 

28  Peabody  v.  Norfolk,  98  Mass.  452,  96  Am.  Dec.  664.  See,  also. 
Tabor    v.    Hoffman,  118    N.  Y.  30,  16  Am.  St.  Eep.  740,  23  N.  E.  12. 

29  The  following  dictum  of  Wigram,  V.  C,  in  Tipping  v.  Clarke, 
2  Hare,  393,  has  often  been  referred  to  with  approval:  "It  is  clear,thal 
every  clerk  employed  in  a  merchant's  counting  house  ia  under  an 
implied  contract  that  he  will  not  make  public  that  which  he  learns 
in  the  execution  of  his  duty  as  clerk."  The  secret  may,  of  course, 
be  protected  by  express  agreement;  such  an  agreement  is  not  in  gen- 
eral restraint  of  trade:  See  post,  §  297. 

30  Yovatt  V.  Wingard,  1  Jacob  &  W.  394.  See  a  clever  argument 
in  favor  of  this  theory  in  11  Harvard  Law  Review,  262. 

31  "Perhaps  the  real  solution  is  that  the  confidence  postulates  an 
implied  contract;  that,  when  the  court  is  satisfied  of  the  existence 
of  the  confidential  relation,  then  it  at  once  infers  or  implies  the 
contract  arising  from  that  confidential  relation":  Merryweather  v. 
Moore,  [1892]  2  Ch.  518,  522,  per  Kekewich,  J,  In  addition  to  tha 
eases  already  cited,  see  the  following  recent  cases,  all  concerning 
the  disclosure  or  unfair  use  of  secret  processes:  C.  F.  Simmons  Medi- 
eine  Co.  v.  Simmons,  81  Fed.  163;  Stewart  v.  Hook,  118  Ga.  445,  45 
S.  E.  369;  Westervelt  v.  National  Paper  etc.  Co.,  154  Ind.  673,  57 
N.  E.  552  (reviewing  many  cases);  O.  &  W.  Thum  Co.  v.  Tloczynski^ 
114  Mich.  149,  68  Am.  St.  Rep.  469,  72  N.  W.  140,  38  L.  R.  A.  200, 
45  Cent.  L.  J.  348  (reviewing  many  cases);  Salomon  v.  Hertz, 
40  N.  J.  Eq.  400,  2  Atl.  379;  Stone  v.  Goss,  65  N.  J.  Eq.  756,  55 
Atl.  736;  Chaplin  v.  Stoddart,  30  Hun,  300;  Eastman  Co.  v.  Reich 
enbach,  20  N.  Y.  Supp.  110,  36  Cent.  L.  J.  433,  47  N.  Y.  St. 
Rep.  435;  Little  v.  Gallus,  38  N.  Y.  Supp.  487,  dissenting  opinion. 
Id.  1014  4  App.  Div.  569.  See,  also,  Simmons  Hardware  Co.  T. 
Waibel,   1    S.   D.    488,  36    Am.    St.    Rep.    755,    47    N.  W.  814,  11 


491  INJUNCTIONS-EQUITABLE  INTERESTS.  i   269 

person  acquiring  the  knowledge  by  breach  of  contract 
or  of  confidence  will  be  enjoined,  but  also  all  persons 
to  whom  he  has  disclosed  the  secret.^*  The  protection 
of  an  injunction  is,  of  course,  extended  only  to  that 
which  is  really  the  plaintiff's  secret,  and  not  to  knowl- 
edge or  information  which  is  accessible  to  all  the 
world.'" 

§  269.  Other  Instances. — Among  other  instances  in 
\\  hich  equity  will  grant  an  injunction,  preliminary  or 
final,  to  protect  purely  equitable  estates  or  interests, 
or  in  aid  of  purely  equitable  remedies,  the  following 

L.  R.  A.  267  (receiver  appointed  of  a  secret  code).  The  jurisdic- 
tion is  thus  described  in  Westervelt  v.  National  Paper  etc.  Co., 
tupra:  "It  is  evident  from  the  authorities  cited  that  if  a  per- 
son employs  another  to  work  for  him  in  a  business  in  which  he 
makes  use  of  a  secret  process  or  of  machinery  invented  by  himself, 
or  by  others  for  him,  but  the  nature  and  particulars  of  which  he 
desires  to  keep  a  secret,  and  of  which  desire  on  the  part  of  the 
eir.ployer  the  employee  has  notice  at  the  time  of  his  employment, 
even  if  there  is  no  express  contract  on  the  part  of  the  employee 
not  to  divulge  said  secret  process  or  machinery,  the  law  will  im- 
ply a  promise  to  keep  the  employer's  secret  thus  intrusted  to  him; 
and  any  attempt  on  his  part  to  use  the  secret  process  or  machinery, 
or  to  construct  the  machinery  for  his  own  use,  as  against  the  master, 
or  to  communicate  said  secret  to  others,  or  in  any  manner  to  aid 
others  in  using  the  same  or  in  constructing  the  machinery,  will  not 
tnly  be  a  breach  of  his  contract  with  his  employer,  but  a  breach  of 
confidence  and  violation  of  duty  which  will  be  enjoined  by  a  court 
of  equity." 

To  the  effect  that  an  assignee  of  the  secret  may  enjoin  former  em- 
ployees of  the  assignor,  see  Vulcan  Detinning  Co.  v.  American  Can 
Co.  (N.  J.  Eq.),  58  Atl.  290.  In  Pressed  Steel  Car  Co.  v.  Standard 
Steel  Car  Co.  (Pa.),  60  Atl.  4,  blue-prints  were  delivered  by  the  com- 
plainant to  certain  railroad  companies,  to  be  used  in  ordering  parts 
of  cars,  etc.,  from  complainant.  One  company  delivered  the  prints 
to  a  rival.  It  was  held  that  this  was  a  breach  of  confidence,  and 
that  an  injunction  should  issue. 

32  See  nearly  all  the  cases  cited  in  the  preceding  notes. 

33  See  Reuter's  Telegram  Co.  v.  Byron,  43  L.  J.  (Ch.)  661,  opinion 
c.f  Jessel,  M.  R.;  Williams  v.  Williams,  3  Mer.  15- 


I   L'Og  EQUITABLE    REMEDIES.  492 

may  be  enumerated :  In  aid  or  in  place  of  cancellation, 
to  prevent  the  transfer  of  negotiable  instruments,  at  the 
suit  of  the  defrauded  maker  or  acceptor,  or  of  the  party- 
claiming  to  be  the  true  owner,  or  to  have  an  interest  in 
them;^^  or  the  transfer,  under  like  circumstances,  of 
stocks  or  other  securities  not  strictly  negotiable  ;^^  to 
prevent  the  transfer  or  injury  of  chattels  of  a  special 
nature  and  value,^^  or  of  other  chattels  wrongfully  de- 
tained by  an  agent  in  violation  of  his  trust,^'^  in  con- 
nection with  a  suit  for  their  delivery  up;  in  aid  of  the 
rights  of  an  equitable  assignee  against  interference  by 
his  assignor  ;^^  to  protect  the  estate  of  a  supposed  in- 
sane person  during  the  pendency  of  lunacy  proceed- 
ings;^^ in  connection  with  creditors'  bills  ;^<'  to  prevent 
a  defendant  from  affecting  or  encumbering  the  prop- 
erty in  litigation  by  contract,  conveyance,  mortgage,  or 
any  other  act;"*^  and,  in  general,  in  all  suits  to  enforce 
an  equitable  right  against  specific  property, — as  to  en- 
force an  equitable  estate  and  compel  the  conveyance  of 

34  Pom.  Eq.  Jur.,  §  1340.     See  post,  chapter  on  Cancellation. 

35  Pom.  Eq.  Jur.,  §  1340.     See  post,  chapter  on  Cancellation. 

36  Lloyd  V.  Loaring,  6  Ves.  773  (Masonic  regalia) ;  Church  v.  Hae- 
ger  (Com.  PI.  S.  T.),  33  N.  Y.  Supp.  47  (wedding  presents).  See 
post,    chapter    on    Specific    Performance. 

37  Wood  V.  Eowcliffe,  3  Hare,  304,  308.  See  post,  chapter  on  Spe- 
cific   Performance. 

38  Dulaney  v.  Scudder,  94  Fed.  6,  36  C.  C.  A.  52  (and  the  court 
may  retain  jurisdiction  for  the  purpose  of  assessing  damages,  but 
not  in  aid  of  a  legal  assignee,  whose  right  has  been  acknowledged 
by  the  debtor,  to  prevent  execution  on  a  judgment  recovered  by  the 
assignor  against  the  debtor,  since  the  assignee's  right  is  not  preju- 
diced thereby,  and  his  remedy  at  law  against  the  debtor  is  complete) ; 
Perry  v.  Thompson,  108  Ala.  586,  18  South.  524. 

39  In  re  Harris,  7  Del.  Ch.  42,  28  Atl.  329. 

40  See  post,  chapter  on  Creditors'  Suits.  For  instance  of  injunction 
to  preserve  the  fund  belonging  to  the  debtor  until  judgment  at  law 
is  obtained,  see  Hawks  v.   Hawks   (Vt.),  54  Atl.  959. 

41  Pom.  Eq.  Jur.,  §  1340;  Daly  v.  Kelly,  4  Dow,  417,  440.  See  ante, 
§  262,  note  2,  §  264,  as  to  preliminary  or  interlocutory  injunction. 


493  INJUNCTIONS- EQUITABLE   INTERESTS.  S  2G9 

the  legal  title,  to  enforce  a  trust,  or  an  equitable  lien,*^ 
to  compel  the  specific  performance  of  a  contract  ;'*'' 
and  the  like, — the  court  will  grant  an  injunction  to  re- 
strain a  threatened  transfer  of  the  property,  whether 
land,  chattels,  or  securities,  during  the  pendency  of  the 
action.''^ 

42  See  Williams  v.  Harlan,  88  Md.  1,  71  Am,  St.  Rep.  394,  41  Atl. 
61  (lien  of  tenant  in  common  for  improvements  benefiting  the  es- 
tate, or  of  one  subrogated  to  his  rights,  protected  from  an  unfair 
partition);  Pensacola  &  G.  R.  Co.  v.  Spratt,  12  Fla.  26,  91  Am.  Dec. 
747  (holder  of  equitable  lien  may  have  relief  on  ground  of  waste 
only  when  defendant's  use  of  the  property  impairs  the  security); 
Robinson  v.  Pickering,  L.  R.  16  Ch.  D.  371,  660  (in  suit  to  enforce 
married  woman 's  contract  against  her  separate  estate,  an  injunction 
restraining  her  from  alienating  her  property  will  not  be  granted  be- 
fore the  plaintiflf  establishes  his  right  by  obtaining  a  judgment,  be- 
cause her  contract,  by  the  English  doctrine,  creates  no  lien  or  charge 
on  her  estate). 

43  See  post,  chapters  on  Injunction  to  Prevent  Breach  of  Contract, 
and  on  Specific  Performance. 

44  Pom.  Eq.  Jur.,  §  1340. 

* '  To  prevent  a  c/owd  upon  title.  The  use  of  the  injunction  to  pre- 
vent acts  which  would  create  a  cloud  upon  title  is  governed  by  the 
same  rules  which  control  the  remedy  of  removing  a  cloud  frQm  title": 
4  Pom.  Eq.  Jur,,  §:  1345;  cited,  McConnaughy  v.  Pennoyer,  43  Fed. 
342.  See  post,  chapters  on  Injunction  Against  Taxation,  passim,  and 
(in  Vol.  II)  on  Cloud  on  Title. 

"To  protect  married  vx)inen's  property.  An  injunction  may  be 
needed  for  this  purpose;  as,  for  example,  to  restrain  the  sale  of  her 
property  for  her  husband's  debts  when  her  title  is  clear,  but  not  un- 
less it  i«  clear:  Allen  v.  Benners,  10  Phila,  10;  Simson  v.  Bates,  10 
Phila,  66;  to  prevent  the  collection  of  a  mortgage  assigned  by  a  wife, 
when  the  assignment  was  void:  French  v,  Snell,  29  N,  J,  Eq.  95"; 
4  Pom,  Eq.  Jur.,  §  1345,  and  note  6;  cited.  Filler  v.  Tyler,  91  Va.  458, 
22  S.  E.  233.  See,  also,  Kirkpatrick  v.  Buford,  21  Ark.  268,  76  Am. 
Dec.  363  (to  protect  separate  property  from  husband's  creditors); 
Pritchett  v.  Davis,  101  Ga.  236,  65  Am.  St.  Rep.  298,  28  S.  E.  666 
(to  protect  homestead);  Hulett  v.  Inlow,  57  Ind.  412,  26  Am.  Rep. 
64;  Wagoner  v.  Wagoner,  77  Md.  189,  26  Atl.  284  (to  protect  legal 
separate  estate;  case  of  probable  irreparable  injury  must  be  shown); 
Dority  v.  Dority  (Tex.),  71  S.  W.  950  (husband's  interference  with 
statutory  separate  estate  enjoined).  Injunction  is  often  authorized 
by  statute  as  an  incident  to  a  suit  for  divorce,  to  prevent  alienation 


§  2G9  EQUITABLE     KEMEDIES.  494 

of  the  husband's  proiDerty  to  defeat  the  right  to  alimony:  See  In  re 
White,  113  Cal.  282,  45  Pae.  323;  Uhl  v.  Tnvin,  3  Okla.  388,  41  Pac. 
376;  cf.  Smith  v.  Smith  (S.  C),  29  S.  E.  227;  or  to  prevent  his  inter- 
ference with  the  wife's  property:  See  Eobinson  v.  Robinson,  123 
N.  C.  136,  31  S.  E.  371;  Lyon  v.  Lyon,  102  Ga.  453,  66  Am.  St.  Rep. 
189,  31  S.  E.  34,  42  L,  B.  A.  194;  Symonds  v.  Hallett,  L.  R.  24  Ch. 
D.   346. 


495  INJUNCTlONi  BKEACH  OF  (JONTKACTS. 


CHAPTER  XIII. 


INJUNCTIONS    TO    PREVENT    THE    VIOLATION    OP 

CONTRACTS. 

ANAIASIB. 

§  270.     Injunctions  to  prevent  violation  of  contracts — -In  general. 

§  271.     Principles  regulating  specific  performance  apply. 
§§  272-284.     Kestrictive  covenants — Equitable  easements. 

§  273.     Questions  stated. 

§  274.     Action   by   grantor. 

§  275.     Action  by   purchaser   of  other  land. 

§  276.     Eestrietions  as  to  use  of  property. 

§  277.     Restrictions   which    are    enforceable. 

§  278.     Liability   of   grantor. 

5  279.     Effect  of  change  of  character  of  neighborhood. 

§  280.     Complainant    must    come    into    court    with    clean    hands- 
Acquiescence. 

§  281.     Eemedy  independent  of  amount  of  injury. 

§  282.     Actual  notice  not  necessary. 

§  283.     Mandatory   injunctions. 

§  284.     Extension  of  the  doctrine — Application  to  personal  prop- 
erty. 
§§  285-287.     Injunctions  against   breaches   of  covenant   between  land- 
lord  and  tenant. 

§  286.     Same — Eights  of  lessee. 

§  287.     Same — Eights    of    sub-tenant. 
§§   288-291.    Contracts    for    personal    service    of    a    special    character. 

§  289.     Same:   Lurnley   v.   Wagner — Whether   stipulation   must  be 
expressly  negative   in   form. 

§  200.     Same— No   relief  upon   contracts  for   ordinary  services. 

§  291.     Limitations. 
§§  292-299.     Other   agreements,   generally  negative  in   their  nature. 

§   293.     Agreements  not  to  carry  on  a  trade^  express  or  implied  — 
Sale  of  good-will. 

§  294.     Same — Injunctions  against   employees. 

§  295.     Agreements  not  to  compete. 

§  296.     Contracts  conferring  an  exclusive  right. 

§  297.     Miscellaneous   agreements,   expressly  negative. 

§  298.     Miscellaneous   agreements,   not   expressly   negative. 

§  299.     Adequate  remedy  at  law. 

§  300.     Effect    of   provisions    for    penalties    and    liquidated    dam- 
ages. 


i!  270,  271  EQUITABLE    REMEDIES.  496 

§  270.  Injunctions  to  Prevent  the  Violation  of  Contracts — 
In  General — ''An  injunction  restraining  the  breach  of  a 
contract  is  a  negative  specific  enforcement  of  that  con- 
tract. The  jurisdiction  of  equity  to  grant  such  injunc- 
tion is  substantially  coincident  with  its  jurisdiction  to 
compel  a  specific  performance.  Both  are  governed  by 
the  same  doctrines  and  rules;  and  it  may  be  stated  as 
a  general  proposition  that  wherever  the  contract  is  one 
of  a  class  which  will  be  affirmatively  specifically  en- 
forced, a  court  of  equity  will  restrain  its  breach  by  in- 
junction, if  this  is  the  only  practical  mode  of  enforce- 
ment which  its  terms  permit.^  Where  the  agreement 
stipulates  that  certain  acts  shall  not  be  done,  an  in- 
junction preventing  the  commission  of  those  acts  is 
evidently  the  only  mode  of  enforcement ;  but  the  remedy 
of  injunction  is  not  confined  to  contracts  whose  stip- 
ulations are  negative;  it  often  extends  to  those  which 
are  affirmative  in  their  provisions,  where  the  affirmative 
stipulation  implies  or  includes  a  negative.  The  univer- 
sal test  of  the  jurisdiction,  admitted  alike  by  the  courts 
of  England  and  of  the  United  States,  is  the  inadequacy 
of  the  legal  remedy  of  damages  in  the  class  of  contracts 
to  which  the  particular  instance  belongs."^ 

§  271.  Principles  Regulating  Specific  Performance  Apply. 
Since  restraining  the  breach  of  a  contract  by  injunction 

1  Quoted  in   Chicago  Municipal   G.  L.   &  C.  Co.  v.   Town  of  Lake, 
130  111.  42,  22  N.  E.  616;  South  Chicago  City  K.  Co.  v.   Calumet  E) 
St.  E.  Co.,  171  111.  391,  49  N.  E.  576;  Welty  v.  Jacobs,  171  111.  624, 
49  N.  E.  723,  40  L.  E.  A,  98. 

2  4  Pom.  Eq.  Jur.,  §  1341.  The  author  adds  in  the  note:  "The  mod- 
ern English  decisions  have  been  much  more  liberal  than  the  Amer- 
ican cases  in  applying  this  test,  and  the  English  courts  have  more 
freely  used  the  injunction  to  prevent  the  violation  of  contracts  than 
the  majority  of  the  American  judges  have  been  willing  to  go.  The 
tendency  of  the  American  courts  has  been  to  limit,  rather  than  to 
enlar"-e,   the   jurisdiction   in   cases   of   contracts.     English   courts   will 


497  INJUNCTION;   BEEACH   OF   CONTRACTS.  S  271 

is  merely  a  mode  of  specifically  enforcing  the  contract, 
it  follows  that  the  discretion  of  the  court  in  awarding 
the  injunction  is  guided  by  the  same  equitable  prin- 
ciples and  doctrines  as  those  which  regulate  the  remedy 

enjoin  the  violation  of  some  contracts,  even  though  they  cannot  be 
specifically  enforced.  The  American  decisions,  -with  few  exceptions, 
refuse  to  adopt  this  doctrine."  These  remarks  have  hardly  the  force, 
at  the  present  day,  that  they  possessed  at  the  time  when  they 
were  written  (1883).  Indeed,  the  English  and  American  courts  ap- 
pear to  have  changed  places  in  respect  to  their  attitude  towards  one 
important  class  of  contracts — those  for  personal  services:  See  post, 
§§  288,  289. 

Injunction  refused  because  contract  one  of  a  class  which,  because 
of  the  adequacy  of  the  legal  remedy,  will  not  be  aflSrmatively  spe- 
cifically enforced:  Fothergill  v.  Eowland,  L.  K,  17  Eq.  132,  a  con- 
tract for  the  sale  of  chattels,  viz.,  of  all  the  coal  which  defendants 
should  get  from  a  certain  mine;  Harlow  v.  Oregonian  Pub.  Co.  (Or.), 
78  Pac.  737,  See,  also,  infra,  §  271,  and  post,  Vol.  II.,  chapters  on 
Specific  Performance, 

For  instances  of  injunction  granted,  although  there  was  no  express 
negative  stipulation,  if  such  negative  can  reasonably  be  implied: 
Montague  v.  Flockton,  L.  E.  16  Eq.  189;  Manchester  Canal  Co.  v. 
Manchester  Eacecourse  Co.,  [1901]  2  Ch.  37;  Singer  Sewing  Ma- 
chine Co.  V.  Union  B  &  E.  Co.,  1  Holmes,  253,  Fed.  Cas.  No.  12,904; 
Chicago  &  A.  R.  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.,  24  Fed.  516; 
Beatty  v.  Coble,  142  Ind.  329,  41  N.  E.  590;  Dwight  v.  Hamilton, 
113  Mass.  175;  Duff  v.  Russell,  60  N.  Y.  Super.  Ct.  (28  Jones  &  S.)" 
80,  39  N.  Y.  St.  Rep.  266,  14  N.  Y.  Supp.  134,  affirmed  without  opin- 
ion, 133  N.  Y.  678,  31  N.  E.  622  (contract  for  personal  services); 
Hoyt  V.  Fuller,  19  N.  Y.  Supp.  962  (same);  Cort  v.  Lassard,  18  Or. 
221,  17  Am.  St.  Eep.  726,  22  Pac.  1054,  6  L.  E.  A.  653,  So  far  as 
contracts  for  personal  services  are  concerned,  it  is  now  generally 
taken  to  be  settled  in  England  that  an  express  negative  clause  in 
the  contract  is  necessary  to  warrant  an  injunction:  Whitwood  Chem- 
ical Co.  V.  Hardman,  [1891]  2  Ch.  416;  and  the  stipulation  must 
be  negative  in  substance  as  well  as  in  form:  Davis  v.  Foreman,  [1894] 
3  Ch.  654.  See,  also,  Burton  v.  Marshall,  4  Gill  (Md.),  487,  45  Am. 
Dec.  171. 

For   instances   of   injunction    granted,   notwithstanding    that    some 

parts   of   the    contract    were    incapable    of    specific    enforcement,    see 

Whittaker  v.  Howe,  3  Beav.   383;  Rolfe  v.  Rolfe,  15  Sim.  88;  Die- 

trichsen  v.  Cabburn,  2  Phill.  Ch.  52,  per  Lord    Cottenham,  C.  ("the 

Equitable  Remedies,  Vol.  I — 32 


§  271  EQUITABLE    REMEDIES.  408 

of  specific  performance.  Thus,  the  breach  of  a  contract 
will  not  be  enjoined  unless  the  terms  of  the  contract  are 
certain  and  definite;^  if  the  injunction  will  work  a 
"hardship"  to  the  defendant  or  innocent  third  parties, 
within  the  meaning  of  that  term  in  equity;'*  if  the  con- 
equitable  jurisdiction  to  restrain  by  injunction  an  act  which  the 
defendant  by  contract  or  duty  was  bound  to  abstain  from,  cannst 
be  confined  to  cases  in  which  the  court  haa  jurisdiction  over  the  act« 
of  llie  plaiutift'");  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G,  604  (the 
Jcailing  case,  decided  in  1852,  reviewing  all  prior  authorities);  Donnell 
V.  Beunett,  L.  K.  22  Ch.  D.  835  (immaterial  whether  the  negatiTe 
clause  is  a  separable  part  of  the  whole  contract) ;  Singer  Sewing 
Machine  Co.  v.  Union  Button-Hole  etc.  Co.,  1  Holmes,  253,  Fed.  Cas. 
Xo.  12,904,  per  Lowell,  J.,  reviewing  many  English  cases  ("I  think 
the  fair  result  of  the  later  cases  may  be  thus  expressed:  If  the  case 
is  one  in  which  the  negative  remedy  of  injunction  will  do  substan- 
tial justice  between  the  parties,  by  obliging  the  defendant  either 
to  carry  out  his  contract  or  lose  all  benefit  of  the  breach,  and  the 
remedy  at  law  is  inadequate,  and  there  is  no  reason  of  policy  against 
it,  the  court  will  interfere  to  restrain  conduct  which  is  contrary  to 
the  contract,  although  it  may  be  unable  to  enforce  a  specific  per- 
formance of  it");  Western  Union  Tel.  Co.  v.  Union  Pac.  E.  Co., 
1  McCrary,  558,  3  Fed.  423;  Western  Union  Tel.  Co.  v.  St.  Josepti 
&  W.  E.  Co.,  1  McCrary,  565,  3  Fed.  430;  Chicago  &  A.  E.  Co.  v. 
New  York,  L.  E.  &  W.  E.  Co.,  24  Fed.  'olG  (enjoining  diversion  of 
traffic  from  a  railroad);  Xenia  Eeal  Estate  Co.  v.  Macy,  147  Ind. 
568,  47  N,  E.  147  (contract  to  supply  natural  gas) ;  Standard  Fashion 
Co.  v.  Siegel-Cooper  Co.,  157  N.  Y.  60,  68  Am.  St.  Rep.  749,  51  N. 
E.  408,  43  L.  E.  A.  854,  affirming  30  App.  Div.  564,  52  N.  Y,  Supp. 
433,  and  reversing  22  Misc.  Eep,  624,  50  N.  Y.  Supp.  1056  (see  pofif, 
§  2J:5);  Peabody  v.  Norfolk,  98  Mass.  452,  96  Am.  Dec.  664;  House 
V.  Clemens,  24  Abb.  N.  C.  381,  9  N.  Y.  Supp.  484  (agreement  by 
defendant,  an  author,  to  permit  plaintiff  to  dramatize  a  novel  written 
1  y  the  foruier).  But  see  Welty  v.  Jacobs,  171  111.  624,  49  N.  E.  723, 
40  L.  E.  A.  98;  Iron  Age  Publishing  Co.  v.  Western  Union  Tel.  Co., 
83  Ala.  498,  3  Am.  St.  Rep.  758,  3  South.  449;  Strang  v.  Richmond, 
P.  &  C.  R.  Co.,  93  Fed.  71;  Hills  v.  Croll,  2  Phill.  Ch.  60. 

3  See  Gaslight  &  E.  Co.  of  New  Albany  v.  City  of  New  Albany, 
139  Ind.  660,  39  N.  E.  462;  Xenia  Real  Estate  Co.  v.  Macy,  147  Ind. 
5G8,  47  N.  E.  147;  Giles  v.  Dunbar,  181  Mass.  22,  62  N.  E.  985;  Strang 
V.  Richmond,  T.  &  C.  E.  Co.,  93  Fed.  71. 

4  Goddard  v.  American  Queen,  27  Misc.  Rep.  482,  59  N.  Y.  Supp. 


499  INJUNCTION;   BEEACH   OF   CONTEACTS.  i  273 

tract  is  tainted  with  illegality;''  if  there  has  been  n^ 
performance  by  the  plaintiff  of  that  which,  under  the 
terms  of  the  contract,  he  was  obliged  first  to  perform  ;• 
or  when  the  decree  of  injunction  would  be  nugatory,^ 
etc. 

§  272.  Restrictive  Covenants — Equitable  Easements. — In- 
junctions are  frequently  allowed  to  restrain  the  viola- 
tion of  covenants  restricting  the  use  of  the  land.  "WhcB 
the  owner  of  land  enters  into  a  covenant  concerning  ife, 
when  in  a  deed  the  grantor  or  the  grantee  covenants,  or 
in  a  lease  the  lessor  or  the  lessee  covenants,  concerning 
the  land,  concerning  its  use,  restricting  certain  speci- 
fied uses,  stipulating  for  certain  specified  uses,  sub- 
jecting it  to  easements  or  servitudes,  and  the  like,  and 
the  land  is  afterwards  conveyed,  or  sold,  or  passes  to 
one  who  has  actual  or  constructive  notice  of  the  cove- 
nant, the  grantee  or  purchaser  will  take  the  premise* 
bound  by  the  covenant,  and  will  be  compelled  in  equity 
either  to  specifically  execute  it,  or  will  be  restrained 
from  violating  it,  at  the  suit  of  the  original  covenantee 
or  of  any  other  person  who  has  a  suflicient  equitable 
interest,  although  perhaps  without  any  legal  interest, 

46.  Nor  will  a  contract  inequitable  and  unconscionable,  which  de- 
fendant probably  did  not  understand,  be  enforced  by  injunction:  Pop* 
Mfg.  Co.  V.  Gormully,  144  U.  S.  224,  12  Sup.  Ct.  632,  36  L.  ed.  414. 

5  See  Pacific  Postal  Tel.  Co.  v.  Western  Union  Tel.  Co.,  50  Fed.  493; 
South  Chicago  City  E.  Co.  v.  Calumet  E.  St.  E.  Co.,  171  111.  391,  4» 
N.  E.  576;  Olin  v.  Bale,  98  111.  53,  38  Am.  Eep.  78  (contract  of  doubt- 
ful propriety);  Fullington  v.  Kyle  Lumber  Co.,  139  Ala.  242,  35  South. 
852. 

6  See  Chicago  M.  G.  L.  &  F.  Co.  v.  Town  of  Lake,  130  111.  42,  22  N. 
E.  616;  New  York  Chemical  Co.  v.  Halleck  (Com.  P.  S.  T.),  15  N.  T. 
Supp.  517.  As  to  mutualUy,  see  supra^  §  271,  last  paragraph  of  nota 
2. 

7  See  Brett  v.  East  India  &  L.  S.  Co.,  2  Hem.  &  M.  404.  See,  gen- 
erally, on  all  these  subjects,  post,  Vol.  II,  chapters  on  Specific  Pef- 
formance. 


i  272  EQUITABLE    EEMEDIE3.  600 

in  such  performance."®  The  application  of  this  doc- 
trine is  wholly  independent  of  the  question  whether  the 
covenant  is  of  such  a  character  as  to  run  with  the  land.* 
It  is  a  creation  of  equity  and  can  be  enforced  by  an 
equitable  remedy.^** 

•  Pom.  Eq.  Jur.,  §  1295. 

•  Tulk  V.  Moxhay,  2  Phill.  774.  "The  question  is  not  whether 
the  covenant  runs  with  the  land,  but  whether  a  party  shall  be  per- 
mitted to  use  the  land  in  a  manner  inconsistent  with  the  contract 
entered  into  by  his  vendor,  and  with  notice  of  which  he  pur- 
chased." See,  also,  Morris  v.  Tuskaloosa  Mfg.  Co.,  83  Ala.  565, 
a  South.  690;  Willoughby  v.  Lawrence,  116  lU.  11,  4  N.  E.  356,  56 
Am,  Eep.  758,  citing  Pom.  Eq.  Jur.,  §§  1295,  1342. 

It  is  questionable  whether  affirmative  covenants  of  similar  na- 
ture will  be  enforced  in  equity.  Professor  Pomeroy  in  Pom.  Eq. 
Jur.,  §  1295,  says:  "I.  have,  as  it  will  be  seen,  continued  to  state 
ihe  doctrine  in  its  most  general  form  as  applying  to  affirmative  as 
well  as  to  restrictive  covenants,  and  as  rendering  the  owner  liable 
to  the  affirmative  duty  of  specifically  performing  the  covenant,  as 
well  as  to  the  negative  remedy  of  restraint  from  violating  it,  not- 
withstanding the  very  recent  decisions  by  the  English  court  of  ap- 
peal holding  that  the  doctrine  applies  only  to  restrictive  covenants, 
and  does  not  extend  to  those  which  stipulate  for  affirmative  acts." 
See  London  etc.  Ey.  v.  Gomm,  L.  E.  8  Q.  B.  D.  562;  Haywood  v. 
Brunswick  Bldg.  See,  L.  E.  8  Q.  B.  D.  403.  In  Morland  v.  Cook 
L.  E.  6  Eq.  2'52,  an  affirmative  covenant  was  enforced.  In  Stevens 
V.  Annex  Eealty  Co.,  173  Mo.  511,  73  S.  W.  505,  an  affirmative  cove- 
nant to  pay  assessments  for  improvements  was  enforced. 

10  "The  most  frequent  condition  of  facts  to  which  the  doctrine 
has  been  applied  in  the  United  States  is  the  following:  A,  the  owner 
of  a  block  of  land,  divides  it  into  lots  for  sale,  and  sells  all  these 
lots  to  different  grantees.  In  the  deed  of  lot  No.  1  are  covenants  of 
the  grantee  not  to  build  nearer  the  street  than  a  certain  line,  or 
not  to  build  certain  kinds  of  buildings,  or  not  to  use  the  lots  for 
certain  purposes,  or  not  to  build  so  as  to  cut  off  a  certain  prospect, 
or  other  negative  or  affirmative  covenants.  The  deeds  of  all  the  other 
lots  contain  similar  covenants.  Finally,  the  whole  land  is  sold,  so 
that  A  retains  no  interest  whatever.  The  lots  are  afterwards  con- 
veyed to  subsequent  grantees.  Each  subsequent  grantee  would  be 
charged  with  constructive  notice  of  the  covenants  in  the  original  deed 
under  which  he  claimed  title.  If  the  subsequent  grantee  of  any  lot — 
say  No.  1 — should  violate  the  covenants  in  the  deed  of  his  lot,  then 
plainly  there  would  be  no  right  of  action  at  law  against  him  in  favor 


601  INJUNCTION;   BREACH   OF  CONTRACTS.  {  273 

§  273.  Questions  Stated — "Every  owner  of  real  prop- 
erty has  the  right  so  to  deal  with  it  as  to  restrain  its 
uses  by  his  grantees  within  such  limits  as  to  prevent  its 
appropriation  to  purposes  which  will  impair  the  value 
or  diminish  the  pleasure  of  the  enjoyment  of  the  land 
which  he  retains.  The  only  restriction  on  this  right  is, 
that  it  shall  be  exercised  reasonably,  with  due  regard 
to  public  policy,  and  without  creating  any  unlawful  re- 
straint of  trade.""     When  a  restriction  has  once  been 

of  the  owner  of  any  other  lot;  for  there  would  be  no  legal  privity 
whatsoever  between  them."  "The  following  cases  al3o  illustrate  the 
doctrine:  In  Clark  v.  Martin,  49  Pa.  St.  2S9,  each  grantee  of  adjoin- 
ing lots  covenanted  not  to  build  on  the  rear  portion  of  his  premises 
above  a  certain  height,  and  this  was  enforced;  Schwoerer  v.  Boylston 
Market  Assn.,  99  Mass.  285  (a  covenant  that  a  strip  of  land  should 
not  be  subject  to  fences,  and  should  be  used  as  a  way,  was  enforced 
by  the  subsequent  grantee  of  other  land  benefited  thereby);  Peck 
V.  Conway,  119  Mass.  546  (a  covenant  not  to  erect  a  building  on 
the  land  conveyed  was  enforced  against  a  subsequent  grantee  of  the 
covenantor  by  a  subsequent  grantee  of  the  original  covenantee;  the 
defendant  had  constructive  notice  from  his  title  deeds);  Whitney  v. 
Union  etc,  Ry.  Co.,  11  Gray,  359,  71  Am.  Dec.  715  (a  covenant  not  to 
use  the  land  in  a  certain  manner  enforced  against  a  subsequent 
grantee  charged  with  notice);  Parker  v.  Nightingale,  6  Allen,  341,  83 
Am.  Dec.  632  (in  conveyances  of  adjoining  lots  by  same  grantor,  each 
grantee  covenanted  that  the  lot  should  only  be  used  for  dwelling- 
houses;  held  binding  on  all  subsequent  grantees,  and  enforceable  by 
any  subsequent  grantee  against  another"):  Pom.  Eq.  Jur.,  §  1295,  note. 

This  doctrine  is  known  by  various  names  in  the  different  jurisdic- 
tions. Most  of  the  cases  have  arisen  in  England,  New  York,  Massa- 
chusetts, New  Jersey,  or  Pennsylvania.  In  some  jurisdictions  such 
covenants  are  called  covenants  -running  with  the  land.  Else- 
where they  are  said  to  be  in  the  nature  of  easements.  And  in  still 
other  jurisdictions  they  are  simply  called  restrictive  covenants. 
Under  whatever  name,  the  principles  applied  are  practically  the 
same,  so  that  for  the  purpose  of  this  treatment  we  may  disregard 
the  diversity.  Even  where  they  are  called  covenants  running  with 
the  land  it  is  held  that  they  are  covenants  enforceable  only  in  equity. 
It  would  soem  that  the  most  accurate  designation  is  "equitable 
easements,"  for  these  terms  describe  the  particular  covenants,  to  the 
exclusion  of  all  others, 

11   Whitney   v.  Union  Ry.  Co.,  11  Gray,  359,  71  Am.  Dec.  715. 


§  274  EQUITABLE    EEMEDIES.  502 

placed  upon  the  use  of  land,  questions  arise  as  to  who 
is  bound  and  who  may  enforce. 

§  274.  Action  by  Grantor. — When  the  action  is  brought 
by  tlie  grantor,  the  case  is  simple.  If,  in  such  a  case, 
the  defendant  is  the  original  grantee,  an  action  can  be 
maintained  at  law,  and  in  a  proper  case  an  injunction 
will  be  awarded.  If  he  is  a  grantee  of  a  grantee,  an 
injunction  will  be  allow^ed  upon  the  principle  that  a 
party  shall  not  be  permitted  to  use  land  in  a  manner 
inconsistent  with  the  contract  entered  into  by  his  ven- 
dor, with  notice  of  which  he  purchased.^ ^  This  is  sub- 
ject to  the  limitation  in  some  jurisdictions  that  the  re- 
striction must  "touch  or  concern,"  or  "extend  to  the 
support"  of  the  land.^^ 

12  Tulk  V.  Moxhay,  2  Phill.  Ch.  774;  Wilson  v.  Hart,  2  Hem.  &  M. 
551,  11  Jur.,  N.  S.,  735,  L.  E.  1  Ch.  463;  Fielden  v.  Slater,  L.  E.  7 
Eq.  523;  Sullivan  v.  Kohlenberg,  31  Ind.  App.  215,  67  N.  E.  541 
(recorded  contract  not  to  sell  liqnor  enforced  against  purchaser) ; 
Hayes  v.  Waverly  &  P.  E.  Co.,  51  N.  J.  Eq.  348,  27  Atl.  649;  Cornish 
V.  Wiessman,  56  N.  J.  Eq.  610,  35  Atl.  408;  Walker  v.  McNulty,  19 
Misc.  Eep.  701,  45  N.  Y.  Supp.  42.  In  Jenks  v.  Pawlowski,  98  Mich. 
110,  39  Am.  St.  Eep.  522,  56  N.  W.  1105,  22  L.  E.  A.  863,  it  was  held 
that  if  the  grantor  sells  his  remaining  land  without  inserting  re- 
strictions, he  waives  them  as  to  his  prior  grantee.  In  Los  Angeles 
University  v.  Swarth,  107  Fed.  798,  46  C.  C.  A.  647,  54  L.  E.  A.  262, 
it  was  held  that  a  grantor  who  has  disposed  of  all  his  land  in  the 
vicinity  cannot  obtain  an  injunction.  The  argument  is  that  he  suf- 
fers no  injury  by  the  breach.  That,  where  the  grantor  sells  the  whole 
of  his  land,  to  one  purchaser,  with  a  restrictive  covenant  by  the 
▼endee,  such  covenant  is  personal,  and  the  vendor's  executor  cannot 
enjoin  an  assign  of  the  purchaser  in  respect  of  a  breach  committo'l 
after  the  vendor's  death,  see  Formby  v.  Barker,  [1903]  2  Ch.  539, 
reviewing  many  cases.  It  has  been  held  that  where  several  grantors 
unite  in  a  deed  to  a  city  and  covenant  therein  that  no  buildings  shall 
be  built  on  a  certain  strip,  one  grantor  may  enjoiu  another  from 
violating  the  covenant:  Evans  v.  New  Auditorium  Pier  Co.  (N.  J. 
Eq.),  58  Atl.  19L 

la  Korcross  v.  James,  140  Mass.  188,  2  N,  E.  946.  See,  also,  Loa 
Angeles  Terminal  Land  Co.  v.  Muir,  136  Cal.  36,  68  Pac.  308. 


503  INJUNCTION;   BREACH   OF   CONTRACTS.  S  ^75 

§  275.  Action  by  Purchaser  of  Other  Land. — When  it 
clearly  appears  that  such  restrictions  are  intended  to 
inure  to  the  benefit  of  other  land,  at  the  time  of  con- 
veyance or  formerly  belonging  to  the  grantor,  a  subse- 
quent grantee  of  such  other  parcel  may  enforce  the  re- 
striction by  injunction.  The  principal  question  to  be 
determined  in  such  cases  is  whether  the  intent  is  suf- 
ficiently clear  to  warrant  the  court  in  giving  relief.  It 
is  a  matter  for  construction  of  the  words  of  the  cove- 
nant, in  connection  with  the  surrounding  circumstances. 
If  the  language  is  explicit  in  stating  the  intent,  the  gran- 
tee's right  is  admitted.^*  The  difficulty  arises  when 
the  covenant  merely  restrains  the  use  without  indicat- 
ing the  beneficiary. 

Where  an  owner  of  a  tract  of  land  lays  it  out  in 
building  lots,  makes  a  plan  showing  a  general  building 
scheme,  and  sells  in  accordance  therewith  to  various 
purchasers,  inserting  restrictions  in  all  the  deeds,  the  in- 
tent will  be  inferred.  The  purpose  of  the  restrictions 
is  clearly  to  benefit  all  the  land  in  the  tract  and  to  make 
an  inducement  for  purchase.  Accordingly,  one  grantee 
may  enjoin  a  breach  by  another,  or  by  one  who  takes 
with  notice.^ ^     Some  courts  have  intimated  that  either 

14  Lattimer  v.  Livermore,  72  N.  Y.  174;  Scbwoerer  v.  Boylstoa 
Market  Assn.,  99  Mass.  285;  Ragen  v.  Hasegood,  [1900]    2  Ch.  388. 

15  In  the  following  cases  there  was  a  general  scheme  of  improve- 
ment which  was  held  sufficient  to  show  an  intent  to  give  a  grantee 
a  right  to  enforce:  Collins  v.  Castle,  L.  R.  36  Ch.  D.  243;  Child 
T.  Douglas,  Kay,  560;  Spicer  v.  Martin,  L.  R.  14  App.  Cas.  12; 
Parker  v.  Nightingale,  88  Mass.  (6  Allen)  341,  83  Am.  Dec.  632; 
Hamlen  v.  Werner,  144  Mass.  397,  11  N.  E.  684;  Hano  v.  Bigelow, 
155  Mass.  341,  29  N.  E.  628;  Winfield  v.  Henning,  21  N.  J.  Eq.  183; 
Tallmadge  v.  East  River  Bank,  26  N".  Y.  105;  Bimson  v.  Bultman,  3 
App.  Div.  198,  38  N.  Y.  Supp.  209;  Barrow  v.  Richard,  8  Paige,  351, 
35  Am.  Dec.  713;  Summers  v.  Beeler,  90  Md.  474,  78  Am.  St.  Rep. 
446,  45  Atl.  19,  48  L.  R.  A.  54;  Whatman  v.  Gibson,  9  Sim.  196; 
Schreiber  v.  Creed,  10  Sim.  196;  Pollard  v.  Gore,  [1901]  1  Ch.  831;. 
Fisk  V.  Ley,  76  Conn.  295,  56  Atl.  559.  For  a  collection  of  authoii- 
ties  see  note,  21  Am.  St.  Rep.  489. 


5  275  EQUITABLE    REMEDIES.  504 

a  general  building  scheme  or  an  express  declaration  in. 
the  covenant  is  essential;  but  the  better  view  seems  to 
be  that  the  intent  may  be  otherwise  determined.^' 

l«  The  rules  are  summed  up  in  De  Gray  v.  Monmouth  Beach  Club- 
house Co.,  50  N.  J.  Eq.  329,  24  Atl.  388,  as  follows:  "The  action  is 
held  not  to  be  maintainable  between  purchasers  not  parties  to  the 
original  covenant,  in  cases  in  which — (1)  It  does  not  appear  that  the 
covenant  was  entered  into  to  carry  out  some  general  scheme  or  plan 
for  the  improvement  or  development  of  the  property  which  the  act 
of  defendant  disregards  in  some  particular.  (2)  It  does  not  appear 
that  the  covenant  was  entered  into  for  the  benefit  of  the  land  of  which 
complainant  has  become  the  owner,  (3)  It  appears  that  the  cove- 
nant was  not  entered  into  for  the  benefit  of  subsequent  purchasers, 
but  only  for  the  benefit  of  the  original  covenantee  and  his  next 
of  kin.  (4)  It  appears  that  the  covenant  has  not  entered  into  the 
consideration  of  the  complainant's  purchase.  (5)  It  appears  that  the 
original  plan  has  been  abandoned  without  dissent,  or  the  character 
of  the  neighborhood  has  so  changed  as  to  defeat  the  purpose  of  the 
covenant,  and  to  thus  render  its  enforcement  unreasonable."  All  of 
the  statements  seem  fully  supported  by  authority,  with  the  excep- 
tion of  the  first.  In  probably  the  majority  of  the  cases  where 
injunctions  have  been  granted  there  has  been  a  general  building 
scheme.  But  it  will  be  seen  that  such  relief  has  been  granted  where 
there  has  been  no  such  scheme. 

In  Beals  v.  Case,  138  Mass.  138,  the  rule  was  laid  down  as  follows: 
"But  it  is  always  a  question  of  intention  of  the  parties;  and,  in  order 
to  make  this  rule  applicable,  it  must  appear  from  the  terms  of  the 
grant,  or  from  the  situation  and  surrounding  circumstances,  that  it 
was  the  intention  of  the  grantor  in  inserting  the  restriction  to  create 
a  servitude  or  right  which  should  inure  to  the  benefit  of  the  plain- 
tiff's land,  and  should  be  annexed  to  it  as  an  appurtenance." 

In  the  following  cases  the  court  found  sufficient  evidence  of  the 
intention:  Tobey  v.  Moore,  130  Mass.  448;  Peck  v.  Conway,  119  Mass. 
546;  Bauer  v.  Gribbel,  2  App.  Div.  80,  37  N.  Y.  Supp.  609;  Electric 
City  Land  &  Imp.  Co.  v.  West  Eidge  Coal  Co.,  187  Pa.  St.  500,  41  Atl. 
458;  Muzzarelli  v.  Hulshizer,  163  Pa.  St.  643,  30  Atl.  291;  St.  An- 
drew's Church's  Appeal,  67  Pa.  St.  (17  P.  F.  Smith),  512;  Clark  v. 
Martin,  49  Pa.  St.  289;  Duncan  v.  Central  Passenger  Ry.  Co.,  85  Ky. 
425,  4  S.  W.  228;  Morris  v.  Tuskaloosa  Mfg.  Co.,  83  Ala.  565,  3  South. 
689;  Greene  v.  Creighton,  7  R.  I.  1;  Phoenix  Ins.  Co.  v.  Continental 
Ins.  Co.,  14  Abb.  Pr.,  N,  S.,  2G6;  Hills  v.  Metzenroth,  173  Mass.  423, 
53  N.  E.  890;  Linzee  v.  Mixer,  101  Mass.  512;  Coughlin  v.  Barker,  46 
Mo.  App.  54;  Moxhay  v.  Inderwick,  1  De  Gex  &  S.  708  (not  an  iu- 
iunction   case);   In  re   Birmingham   &  D.   L.   Co.,   [1893]     1   Ch.   343; 


fi05  INJUNCTION;   BEEACH   OF   CONTRACTS.  i  27« 

§  276.  Restrictions  as  to  "Use  of  Property — These  rulea 
are  not  confined  to  mere  restrictions  as  to  the  character 
or  situation  of  buildings,  but  apply  as  well  to  restric- 
tions as  to  their  use.  Very  frequently  it  is  stipulated 
that  no  intoxicating  liquors  shall  be  sold  on  the  prem- 
ises. These  restrictions  are  sustained  on  the  ground 
that  a  party  has  the  right,  in  disposing  of  his  property, 
to  prevent  such  a  use  by  the  grantee  as  might  diminish 
the  value  of  remaining  land  or  impair  its  eligibility  for 
other  uses.^'^    Eestrictions  prohibiting  the  carrying  on  of 

Nottingham  Patent  Brick  &  Tile  Co.  v.  Butler,  L.  R,  15  Q.  B.  D.  2G8 
(not  an  injunction  case);  Meriwether  v.  Joy,  85  Mo.  App.  634. 

In  the  following  cases  it  was  held  that  the  evidence  of  intention 
was  not  sufficiently  clear  to  warrant  an  injunction:  Lowell  Inst,  for 
Sav.  V.  City  of  Lowell,  153  Mass.  530,  27  N.  E.  518;  Dana  v.  Went- 
worth,  111  Mass.  291;  Jewell  v.  Lee,  14  Allen,  145,  92  Am.  Dec.  744; 
Sharp  V.  Ropes,  110  Mass.  381;  Nottingham  Patent  Brick  &  Tile  Co. 
V.  Butler,  L.  E.  16  Q.  B.  D.  778  (not  an  injunction  case) ;  Badger  v. 
Eoardman,  16  Gray,  559  (not  an  injunction  case);  Renals  v.  Cowli- 
shaw,  L.  R.  9  Ch.  D.  125;  Knapp  v.  Hall,  63  Hun,  624,  17  N.  Y. 
Supp.  437;  Keates  v.  Lyon,  L.  R.  4  Ch.  App.  218  (not  an  injunction 
case);  Master  v.  Hansard,  L.  R.  4  Ch.  D.  718.  The  use  of  the  word 
"heirs"  in  a  covenant  not  to  build  without  the  consent  of  the 
^'grantor  or  her  heirs"  has  been  held  to  indicate  an  intention  to 
make  the  covenant  personal:  Hemsley  v.  Marlborough  Hotel  Co.,  65 
N.  J.  Eq.  167,  55  Atl.  994.  It  is  held  that  when  a  party  whose  land 
is  subject  to  a  restrictive  covenant  sells  part  of  it  without  any  re- 
striction, he  cannot  enjoin  the  purchaser,  although  the  other  land 
owners  can.  The  restriction  on  the  part  sold  was  not  intended  to 
inure  to  the  benefit  of  the  part  retained  by  the  plaintiff:  King  v. 
Dickeson,  L.  R.  40  Ch.  D.  596.  In  the  following  cases  the  injunction 
was  denied  because  of  special  facts  arising  in  the  cases:  Davis  v. 
Corporation  of  Liecester,  [1894]  2  Ch.  208;  Kirby  v.  School  Board, 
[1896]  Ch.  437.  In  Guardian  of  Tendring  Union  v.  Dawton,  [1891] 
3  Ch.  265,  the  plaintiff  had  a  charge  against  land  for  street  improve- 
ments. The  land  was  subject  to  a  restriction  against  building.  The 
aouTt  held  that  the  plaintiff  could  not  sell  the  land  free  from  the 
restriction.  In  "Welch  v.  Austin  (Mass.),  72  N.  E.  972,  a  restriction 
was  construed  so  as  to  limit  its  effect  to  the  first  house  built  upon 
the  lot. 

17  Jenks  V.  Pawlowski,  98  Mich.  110,  39  Am.  St.  Rep.  522,  56  N.  W. 
1105,  22  L.  R.  A.  863;  Stees  v.  Kranz,  32  Minn.  313,  20  N.  W.  241; 


i  277  EQUITABLE    REMEDIES.  506 

any  obnoxious  business  on  the  premises  will  be  susr 
tained  upon  the  same  ground.^®  Of  course,  to  enable 
anyone  but  the  original  covenantee  to  sue,  it  must  ap- 
pear that  the  restrictions  were  intended  for  the  benefit 
of  the  plaintiff's  land.  Strong  evidence  of  this  is  shown 
when  similar  restrictions  are  put  into  all  the  deeds 
given  by  the  grantor  and  the  benefit  is  made  part  of  the 
inducement  to  the  purchase. 

§  277.  Restrictions  Which  are  Enforceable. — The  courts 
are  divided  on  the  question  of  what  restrictions  may 
be  attached  to  land.  It  is  held  that  a  personal,  as  dis- 
tinguished from  a  real,  obligation,  insisted  upon  by  a 
grantor  and  assumed  by  a  grantee,  restricting  the  use 
of  land,  may  be  enforced  against  the  grantee  and  sub- 
sequent purcha'iers  with  notice.  Thus,  in  New  York 
an  injunction  will  issue  to  restrain  a  purchaser  with 
notice  from  violating  an  agreement  not  to  sell  sand  from 
the  land  conveyed.^*  In  Massachusetts,  however,  it 
has  been  held  that  where  a  grantor  covenants  not  to 
open  a  quarry  on  his  remaining  land,  an  injunction  will 
not  issue  against  a  purchaser  of  such  remaining  land.-** 

Watrous  v.  Allen,  57  Mich.  362,  58  Am.  Rep.  363,  24  N.  W.  104;  Wil- 
Bon  V.  Hart,  L.  R.  1  Ch.  App.  463;  Sutton  v.  Head,  86  Ky.  156,  9  Am. 
St.  Rep.  274,  5  S.  W.  410;  Carter  v.  Williams,  L.  R.  9  Eq.  678;  Hall 
V.  Solomon,  61  Conn.  476,  29  Am.  St.  Rep.  218,  23  Atl.  876;  Atlantic 
Dock  Co.  V.  Leavitt,  54  N.  Y.  35,  13  Am.  Rep.  556;  Star  Brewing  Co. 
T.  Prima3,  163  HI.  652,  45  N.  E.  145;  Anderson  v.  Rowland,  18  Tex. 
Civ.  App.  460,  44  S.  W.  911.  See,  also,  Gilmer  v.  Mobile  &  M.  R.  Co  , 
79  Ala.  569,  58  Am.  Eep,  623  (citing  Pom.  Eq.  Jur.,  §  1342). 

18  HaskeU  v.  Wright,  23  N.  J.  Eq.  389;  Brouwer  v.  Jones,  23  Barb. 
153. 

19  Hodge  V.  Sloan,  107  N.  Y.  244,  1  Am.  St.  Rep.  816,  17  N.  E.  335. 

20  Norcrosa  v,  James,  140  Mass.  188,  2  N.  E.  946.  In  this  ease  the 
court  said:  "If  it  be  asked  what  is  the  difference  in  principle  be- 
tween an  easement  to  have  land  unbuilt  upon,  and  an  easement  to 
kave  a  quarry  left  unopened,  the  answer  is,  that,  whether  a  difference 
©f  degree  or  of  kind,  the  distinction  is  plain  between  a  grant  or  cove- 


507  INJUNCTION;   BREACH   OF   CONTRACTS.  S  278 

^VIle^e  such  a  stipulation  creates  an  invalid  restraint 
upon  trade,  equitable  relief  will  be  denied.^^  In  Penn- 
sjdvania  it  is  held  that  where  a  railroad  company  con- 
tributes money  for  the  development  of  ore  land  and  the 
owners  agree  to  give  all  the  traflSc  to  and  from  the  land 
to  such  company,  a  party  acquiring  title  by  foreclosure 
and  taking  all  the  benefits  of  the  contract  will  be  en- 
joined from  shipping  over  other  lines. ^^  In  Minnesota, 
however,  it  is  held  that  an  agreement  to  give  a  railroad 
the  exclusive  transportation  of  the  products  of  the  land 
does  not  impose  an  obligation  which  attaches  to  or  con- 
cerns the  land  or  its  use  or  mode  of  enjoyment,  and  that 
therefore  it  will  not  be  enforced  in  equity.^^ 

§  278.  Liability  of  Grantor — Where  a  grantor  upon 
conveyance  agrees  with  the  grantee  not  to  use  his  re- 
maining land  for  certain  specified  purposes,  the  cove- 
nant will  generally  be  held  to  be  for  the  benefit  of  the 
land,  and  an  injunction  will  be  granted  to  restrain  a 
breach.  Thus,  a  covenant  not  to  build  on  a  common 
facing  the  land  conveyed,  or  to  fix  a  certain  building 
line  upon  his  remaining  land  will  be  enforced.^*  It  has 
been  held  that,  in  case  of  doubt,  a  clause  creating  an 

nant  that  looks  to  direct  physical  advantage  in  the  occupation  of 
the  dominant  estate,  such  as  light  and  air,  and  one  which  only  con- 
cerns it  in  the  indirect  way  we  have  mentioned." 

21  West  Va.  Trans.  Co.  v.  Ohio  River  Pipe  Line  Co.,  22  W.  Va. 
626,  46  Am.  Kep.  527;  Brewer  v.  Marshall,  19  N.  J.  Eq.  537. 

22  Bald  Eagle  Val.  R.  Co.  v.  Nittany  Val.  R.  Co.,  171  Pa.  St.  284, 
50  Am.  St.  Rep.  807,  33  Atl.  239,  29  L.  R.  A.  423. 

23  Kettle  River  R.  Co.  v.  Eastern  R.  Co.,  41  Minn.  461,  43  N.  W. 
469,  6  L.  R.  A.  111.  To  same  efEect  see  Kep^ell  v.  Bayley,  2  Mylne 
&  K.  517. 

24  Trustees  etc.  v.  Cowen,  4  Paige,  510,  27  Am.  Dec.  80;  Hills  v. 
Miller,  3  Paige,  254,  24  Am.  Dec.  218;  Kilpatrick  v.  Peshine,  24  N.  J. 
Eq.  (9  C.  E.  Green)  206;  Halls  v.  Newbold,  69  Mdl  265,  14  AtL  662. 
This  last  is  not  an  injunction  case^i  however. 


§  279  EQUITABLE    EEMEDIES.  508 

equitable   restriction    is   to   be   construed   against   the 
grantor.^^ 

§  279.  Effect  of  Change  of  Character  of  Neighborhood. — 
The  purpose  of  all  these  restrictions  is  to  benefit  cer- 
tain land.  When,  therefore,  the  character  of  the  neigh- 
borliood  has  so  changed  that  the  restriction  is  of  no 
value  to  the  land  intended  to  be  benefited,  an  injunc- 
tion will  be  refused.^®  For  instance,  if  the  use  of  land 
is  restricted  to  residence  purposes,  it  would  be  inequi- 
table to  enforce  the  covenant  after  the  neighborhood 
has  so  changed  that  the  adjoining  property  is  used  ex- 
clusively for  business  purposes.  To  enforce  it  would 
simply  lessen  the  value  of  the  property  without  ac- 

25  American  Unitarian  Assn.  v.  Minot,  185  Mass.  589,  71  N.  E.  551, 
and  cases  cited. 

20  Ewertsen  v.  Gerstenberg,  186  111.  344,  57  N.  E.  1051,  51  L.  E.  A. 
310;  Jackson  v.  Stevenson,  156  Mass.  496,  32  Am.  St.  Kep.  476,  31 
N.  E.  691;  Page  v.  Murray,  46  N.  J.  Eq.  325,  19  Atl.  11;  Amermaa 
V.  Deane,  132  N.  Y,  355,  28  Am.  St.  Eep.  584,  30  N.  E.  741;  Landell 
V.  Hamilton,  175  Pa.  St.  327,  34  Atl.  663,  34  L.  E.  A.  227.  See,  also, 
Trustees  etc.  v.  Thacher,  87  N.  Y.  311  (not  an  injunction  case).  In 
the  case  first  cited  the  court  laid  down  the  rule  as  follows:  "Equity 
will  not,  as  a  rule,  enforce  a  restriction,  where,  by  the  acts  of  the 
grantor  who  imposed  it,  or  of  those  who  derived  title  under  him, 
the  property,  and  that  in  the  vicinage,  has  so  changed  in  its  char- 
acter and  environment  and  in  the  uses  to  which  it  may  be  put  as  to 
make  it  unfit  or  unprofitable  for  use  if  the  restriction  be  enforced, 
or  where  to  grant  the  relief  would  be  a  great  hardship  on  the  owner 
and  of  no  benefit  to  the  complainant,  or  where  the  complainant  has 
waived  or  abandoned  the  restriction;  or,  in  short,  it  may  be  said  that 
where,  from  all  of  the  evidence,  it  appears  that  it  would  be  against 
equity  to  enforce  the  restriction  by  injunction,  relief  will  be  denied, 
and  the  party  seeking  its  enforcement  will  be  left  to  whatever 
remedy  he  may  have  at  law."  In  England  it  ia  held  that  change  in 
the  character  of  the  neighborhood  is  ground  for  refusal  of  an  injunc- 
tion only  where  the  alteration  takes  place  through  the  acts  or  per- 
mission of  the  plaintiff  or  those  under  whom  he  claims,  bo  that  his 
enforcing  his  covenant  becomes  unreasonable:  Sayers  v.  Collyer,  L.  E. 
28  Ch.  D.  103;  Duke  of  Bedford  v.  Trustees  British  Museum,  2  Mylne 
&  K.  552;  Osborne  v.  Bradley,  [1903]  2  Ch.  446. 


509  INJUNCTION;   BREACH   OF   CONTRACTS.  f  280 

complishing  the  purpose  for  which  the  restriction  was 
made.  Where,  however,  the  restriction,  notwithstand- 
ing the  change  of  use  of  the  land  and  buildings,  is  still 
of  substantial  value  to  the  dominant  lot,  equity  will 
restrain  its  violation.^'^  It  has  been  held  that  where 
an  injunction  would  work  a  great  hardship,  damages 
may  be  awarded  in  lieu  thereof.^* 

§  280.  Complainant  Must  Come  into  Court  with  Clean 
Hands — Acquiescence. — An  injunction  will  not  be  granted 
if  the  plaintiff  has  acted  so  as  to  make  its  issuance  in- 
equitable. A  person  who  seeks  to  enforce  such  a  cove- 
nant must  permit  no  such  breach  of  the  stipulation  as 
will  frustrate  all  the  benefit  that  would  otherwise  ac- 
crue to  the  other  parties  to  the  agreement.  One  who 
stands  by  and  acquiesces  in  repeated  violations  by  the 
defendant  and  others  cannot  be  heard  to  deny  the 
right.^^     And  where  a  party  has  violated  the  restric- 

27  Landell  v.  Hamilton,  175  Pa,  St.  327,  34  Atl.  663,  34  L.  R.  A. 
227;  Zipp  v.  Barker,  55  N.  Y.  Supp.  246. 

28  Equitable  Life  Assur.  Soc.  v.  Brenuan,  30  Abb.  N.  C.  260,  24 
N,  T.  Supp.  784.  In  Langmaid  v.  Reed,  159  Mass.  409,  34  N.  E.  593, 
it  was  held  that  where  the  restriction  expires  by  lapse  of  time  during 
the  pendency  of  injunction  proceedings,  damages  may  be  awarded. 

29  Peek  V.  Matthews,  L.  R.  3  Eq.  515;  Knight  v.  Simmonds,  [1896] 
2  Ch.  294;  Ewertsen  v.  Gerstenberg,  186  111.  344,  57  N.  E.  1051,  51 
L.  E.  A.  310;  Hemsley  v.  Marlborough  Hotel  Co.,  62  N.  J.  Eq.  164  50 
Atl.  14;  Trout  v.  Lucas,  54  N.  J.  Eq.  361,  35  Atl.  153;  Flint  v.  Char- 
man,  6  App.  Div.  121,  39  N.  Y.  Supp.  892;  Moore  v.  Murphy,  89  Hun, 
175,  34  N.  Y.  Supp.  1130;  Aldrich  v.  Billings,  14  R.  L  233.  But  where 
the  restriction  is  as  to  the  use  of  buildings,  the  right  is  not  lost  by 
failure  to  interfere  with  their  construction:  Trustees  etc.  v.  Lynch, 
70  N.  Y.  440,  26  Am.  Rep.  615.  It  has  been  held  that  even  a  grantor 
who  sells  off  an  estate  in  lots  with  restrictions  will  lose  his  right  in 
«'quity  if  he  permits  other  grantees  to  violate  the  same  restrictions. 
The  rule  "rests  upon  the  equitable  ground  that,  if  anyone  who  has 
a  right  to  enforce  the  covenant,  and  so  preserve  the  conditions  which 
the  covenant  was  designed  to  keep  unaltered,  shall  acquiesce  in  ma- 
terial   alterations    of    those    conditions,    he    cannot    thereafter    ask    a 


§  281  EQUITABLE    KEMEDIES.  510 

tions  in  his  own  deed,  he  cannot  enjoin  violations  by 
others,  even  though  the  covenant  violated  by  the  plain- 
tiff is  entirely  different  from  that  disregarded  by 
the  defendant.^*'  But  where  the  violations  by  plain- 
tiff are  not  substantial,  and  violations  by  other  parties 
have  been  in  places  remote  from  plaintiff's  lot,  an  in- 
junction will  not  be  denied.^^  Of  course  the  injured 
party  must  make  prompt  application  for  relief,  and 
must  not  knowingly  permit  money  to  be  expended  with- 
out taking  any  action.^^ 

§  281.     Remedy  Independent  of  Amount  of  Injury "The 

injunction  in  this  class  of  cases  is  granted  almost  as  a 
matter  of  course  upon  a  breach  of  the  covenant.  The 
amount  of  damages,  and  even  the  fact  that  the  plaintiff 
has  sustained  any  pecuniary  damages,  are  wholly  im- 

court  of  equity  to  assist  him  in  preserving  them.  The  complainant 
may  be  in  privity  with  the  defendant,  and  have  his  action  at  law 
for  breach  of  covenant,  but  nevertheless  in  this  situation  a  court 
of  equity  will  not  assist  him":  Ocean  City  Assn  v.  Chalfant,  65 
N.  J.  Eq.  156,  55  Atl.  801.  The  same  court  has  held,  however,  that 
where  no  general  scheme  of  improvement  is  shown,  it  is  no  answer 
to  a  suit  to  enforce  restrictions  on  defendant's  lot  to  say  that  he  hag 
wnived  like  restrictions  elsewhere:  Haines  v.  Einwachter  (N.  J.  Eq.), 
55  Atl.  38.  It  has  been  held  that  where  there  is  a  general  building 
scheme,  a  failure  to  insert  restrictions  in  a  few  of  the  deeds  does 
not  prevent  relief  by  others  against  those  who  do  take  subject  to  re- 
strictions: Frink  v.  Hughes,  133  Mich.  63,  94  N.  W.  601. 

30  Alvord  V.  Fletcher,  28  App.  Div.  493,  51  N.  Y,  Supp.  117;  Page 
V.  Murray,  46  N.  J.  Eq.  325,  19  Atl.  11. 

31  McGuire  v.  Caskey,  62  Ohio  St.  419,  57  N.  E.  53;  German  v. 
Chapman,  L.  K.  7  Ch.  D.  271;  Kichards  v.  Eevitt,  L.  R.  7  Ch.  D. 
224;  Lloyd  v.  London  etc.  E.  Co.,  2  De  Gex,  J,  &  S.  568;  Western  v. 
Maedermott,  L.  R.  2  Ch.  App.  72. 

32  Hemsley  v.  Marlborough  Hotel  Co.,  62  N.  J.  Eq.  164,  50  Atl. 
14;  Trout  v.  Lucas,  54  N.  J.  Eq.  361,  35  Atl.  153;  Ocean  City  Assn. 
V.  Schurch,  57  N.  J.  Eq.  268,  41  Atl.  914.  In  Coles  v.  Sims,  5  De  Gex. 
M.  &  G.  1,  it  was  held  that  it  is  not  necessary  to  bring  suit  ag  soon  as 
the  work  is  started.  It  is  sufficient  if  notice  of  the  right  is  given 
and  suit  is  brought  within  a  reasonable  time. 


611  INJUNCTION;    BEEACH    OF    CONTRACTS.     §§  282,    283 

material.  In  the  words  of  one  of  the  ablest  of  modern 
equity  judges:  *It  is  clearly  established  by  authority 
that  there  is  sufficient  to  justify  the  court  interfering, 
if  there  has  been  a  breach  of  the  covenant.  It  is  not 
for  the  court,  but  for  the  plaintiffs,  to  estimate  the 
amount  of  damages  that  arises  from  the  injury  inflicted 
upon  them.  The  moment  the  court  finds  that  there  has 
been  a  breach  of  the  covenant,  that  is  an  injury,  and  the 
court  has  no  right  to  measure  it,  and  no  right  to  refuse 
to  the  plaintiff  the  specific  performance  of  his  contract, 
although  his  remedy  is  that  which  I  have  described,' 
namely  an  injunction."^^ 

§  282.  Actual  Notice  not  Necessary — It  is  not  necessary 
that  a  party,  to  be  bound  by  such  restrictions,  should 
have  actual  notice.  Constructive  notice  is  sufficient, 
and  the  ordinary  rules  as  to  that  subject  apply.^*  It  i« 
sufficient  if  the  notice  is  contained  in  the  chain  of  title. 
It  has  been  held  that  the  notice  consisting  of  knowledge 
that  all  buildings  erected  on  certain  property  hav® 
been  placed  on  a  certain  line  is  sufficients^  The  cot- 
enants  are  not  binding,  however,  on  one  who  takes  with- 
out notice.s^ 

§  283.  Mandatory  Injunctions — Where  a  party  know- 
ingly, and  against  remonstrances,  builds  in  violation  of 

33  See  Pom.  Eq.  Jur.,  §  1342,  and  note,  quoting  Sir  George  Jessel, 
M.  R.,  in  Leech  v.  Schweder,  L.  R.  9  Cb.  463.  To  the  same  effect, 
see  Kilpatrick  v.  Peshine,  24  N.  J.  Eq.  (9  C.  E.  Green)  206;  St.  Ah- 
drew'3  Church's  Appeal,  67  Pa.  St.  (17  P.  F.  Smith)  512;  Walker 
V.  McNulty,  19  Misc.  Rep.  701,  45  N.  Y,  Supp.  42;  Osborne  v.  Bradley, 
[1903]  2  Ch.  446. 

34  Whitney  v.  Union  Ry.  Co.,  11  Gray,  359,  71  Am.  Dec.  715;  Cor- 
nish V.  Wiessinan,  56  N.  J.  Eq.  610,  35  Atl.  408.  See  2  Pom.  Eq.  Jur., 
§   689. 

35  Tallmadge  v.  East  River  Bank,  26  N.  Y.  105. 

36  Atlantic  City  v.  New  Auditorium  Pier  Co.  (N.  J.  Eq.),  59  AtL 
159. 


S  284  EQUITABLE    EEMEDIES.  512 

restrictive  covenants,  a  mandatory  injunction  may  issue 
to  compel  the  removal  of  such  portions  of  the  building 
as  are  in  violation  thereof.  And  in  such  a  case  it  is  no 
answer  that  the  violation  is  slight.^^  If  such  relief 
were  not  allowed,  something  not  much  short  of  a  right 
would  be  gained  by  stoutly  asserting  an  invalid  claim. 
But  a  mandatory  injunction  will  not  issue  if  the  plain- 
tiff's rights  are  not  clear  or  if  it  is  not  clear  that  the 
building  violates  the  restriction.^* 

§  284.  Extension  of  the  Doctrine — Application  to  Per- 
sonal Property. — An  interesting  extension  of  the  doctrine 
is  found  in  the  case  of  Lewis  v,  Gollner.^^  Gollner,  who 
owned  a  city  lot  upon  which  he  intended  to  build  flats, 
sold  to  neighbors  and  agreed  not  to  erect  such  buildings 
in  the  vicinity.  He  then  purchased  a  lot  across  the 
street,  commenced  to  build  a  flat,  and  conveyed  to  his 
wife  when  suit  was  threatened.  It  was  held  that  the  re- 
striction applied  as  soon  as  the  land  was  purchased  by 
the  covenantor,  and  that  the  wife  would  be  enjoined 
from  violating  because  she  took  with  notice.  It  will 
be  observed  that  the  restriction  was  applied  to  after- 
acquired  property. 

In  New  York,  in  at  least  one  case,  the  doctrine  of  re» 
strictive  covenants  has  been  extended  to  personal  prop- 
erty. A  press  company  agreed  with  plaintiff's  prede- 
cessor that  it  would  not  sell  to  anyone  else  a  press  upon 
which  strip  tickets  could  be  printed.  The  company,  in 
violation  of  its  agreement,  sold  such  a  press  to  the  de- 
fendant, who  had  full  notice.     It  was  held  that  an  in- 

37  Attorney-General  v.  Algonquin  Club,  153  Mass.  447,  27  N.  E.  2, 
11  K  E.  A.  500. 

38  Gatzmer  v.  German  Koman  Catholic  etc.  Asylum,  147  Pa.  St.  313 
23  Atl.  452;  Bowes  v.  Law,  L.  E.  9  Eq.  636. 

39  Lewis  V.  Gollner,  129  N.  Y.  227,  26  Am.  St.  Rep.  516,  29  N.  K 
81. 


513  INJUNCTION;    BKEACH   OF   CONTRACTS.  §  285 

junction  should  issue  against  user  of  tlie  press  by  the 
defendant,  but  that  the  press  company  should  be  made 
a  party  defendant.  The  party  purchasing  under  such 
circumstances  takes  the  property  burdened  with  the 
contracts  made  by  its  owner  in  reference  thereto  and 
which  he  had  the  power  to  make.^*^ 

§  285.  Injunctions  Against  Breaches  of  Covenants  Between 
Landlord  and  Tenant. — Injunctions  are  granted  with  great 
freedom  to  restrain  breaches  of  covenants  between  land- 
lord and  tenant.  Where  a  lease  stipulates  that  the 
premises  are  not  to  be  used  for  certain  purposes,  or  are 
to  be  used  .only  for  certain  purposes,  or  are  to  be  subject 
to  certain  restrictions,  an  injunction  will  issue  at  suit 
of  the  lessor  to  restrain  a  breach.^ ^  This  jurisdiction 
is  based  upon  the  covenant,  and  is  entirely  independent 
of  the  question  whether  the  acts  complained  of  amount 
to  waste.  It  will  be  observed,  also,  that  the  courts  do 
not  confine  the  relief  strictly  to  negative  covenants. ^^ 

40  New  York  Bank  Note  Co.  v.  Hamilton  Bank  Note  Co.,  83  Hun, 
593,  31  N.  Y.  Supp.  1060. 

41  De  Wilton  v.  Saxon,  6  Ves.  106;  Drury  v.  Molins,  6  Ves.  328; 
Gillian  v.  Norton,  33  How.  Pr,  373;  Maddox  v.  White,  4  Md.  72,  59 
Am.  Dec.  67  (see  note  to  this  case  in  59  Am.  Dec);  Linwood  Park 
Co.  V.  Van  Dusen,  63  Ohio  St.  183,  58  N.  E.  576;  Kraft  v.  Welch,  112 
Iowa,  695,  84  N.  W.  908;  Mander  v.  Falke,  [1S91]  2  Oh.  554;  Stew- 
ard V.  Winters,  4  SanJf.  Ch.  628;  Bryden  v.  Northrup,  58  III.  App. 
233;  Dodge  v.  Lambert,  2  Bosw.  570;  Frank  v.  Brunneman,  8  W.  Va. 
462.  In  this  last  case  the  court  held  that  a  court  of  equity  will, 
in  a  proper  case,  grant  an  injunction  to  restrain  the  tenant  from 
doing  a  certain  act,  whether  it  amounts  to  waste  or  not,  provided  it 
be  directly  contrary  to  the  tenant's  own  covenant,  or  even  in  con- 
travention of  an  agreement  which  may  be  inferred  from  the  course 
of  dealing  between  the  parties.  See,  also,  Nicholson  v.  Rose,  4  Do 
Gex  &  J.  10;  Clements  v.  Welles,  L.  K.  1  Eq.  200.  To  the  eflfeot 
that  the  right  to  relief  may  be  lost  by  laches,  see  Barret  v.  Blagrave, 
6  Ves.  104. 

42  Kraft  V.  Welch,  112  Iowa,  695,  84  N.  W.  908.     But  that  injunc- 
tion is  not  a  matter  of  course,  by  the  English  rule,  whore  the  cove- 
Equitable  Remedies,  Vol.  I — 33 


{  285  EQUITABLE  EEMEDIES.  514 

If  the  agreement  is  necessarily  exclusive  the  injunction 
will  issue.  The  grounds  upon  which  the  jurisdiction 
rests  are  the  inadequacy  of  the  legal  remedy  and  the 
prevention  of  multiplicity  of  suits.  If  the  lessor  were 
obliged  to  depend  upon  his  remedy  at  law,  he  would 
have  difficulty  in  securing  a  proper  estimate  of  dam- 
ages, and  besides,  he  would  be  obliged  to  bring  suits 
every  few  days.  It  is  not  necessary  that  substantial 
damages  be  proved.^^  The  lessor  is  entitled  to  have  the 
covenant  performed,  and  he  must  be  the  one  to  decide 
if  he  is  damaged.  It  has  been  held,  however,  that  an 
injunction  will  not  issue  to  restrain  a  lessee  from  sub- 
letting in  violation  of  covenant,  where  the  lease  pro- 
vides for  re-entry,  for  the  remedy  at  law  is  said  to  be 
adequate.^^ 

The  lessor  is  allowed  an  injunction  when  the  lessee 
fails  to  keep  open  a  private  gangway,  in  violation  of 
covenant,  or  where  the  lessee  interferes  with  the  lessor's 
rights  under  the  lease  to  enter  upon  or  use  the  demised 
premises.*^     Thus,  relief  will  be  granted  when  the  lessee 

nant  is  not  negative  in  form,  see  Harris  v.  Boots,  etc.,  Ltd.,  [1904] 
2  Ch.  376  (covenant  by  assignee  of  lease  to  perform  and  observe  the 
negative  covenants  in  the  lease,  is  not  itself  negative,  within  the 
rule.) 

43  In  Consolidated  Coal  Co.  v.  Schmisseur,  135  111.  371,  25  N.  E. 
795,  it  was  held  that  no  damage  need  be  shown  if  the  covenant  is 
express.  "Where  it  is  implied,  substantial  injury  must  be  shown. 
"The  party  not  having  seen  fit  to  expressly  stipulate  against  the 
act  in  his  contract,  a  court  of  equity  will  not  by  implication  insert 
it,  and  then  enforce  it,  unless  substantial  injury  is  thereby  to  be  pre- 
vented." See,  also,  MeEacharn  v.  Colton,  [1902]  App.  Cas.  (Priv. 
Coun.)  104,  citing  Doherty  v.  Allman,  3  App.  Cas.  719  (covenant 
by  lessee  not  to  assign  lease  without  consent  of  lessor). 

44  Gillian  v.  Norton,  33  How.  Pr.  373.  In  Brown  v.  Niles,  165 
Mass.  276,  43  N.  E.  90,  it  was  intimated  that  where  there  is  a  right 
to  terminate  the  lease  for  breach  of  a  covenant,  an  injunction  will 
be  refused. 

45  Eeckwith  v.  Howard,  6  R.  I.  1;  State  Bank  of  Nebraska  v. 
Rohren,  55  Neb.  223,  75  N.  W.  '543;  United  States  Trust  Co.  v. 
O'Brien,  61  N.  Y.  Super,  Ct,  (29  Jones  &  S.)  1,  18  N.  Y.  Supp.  798. 


615  INJUNCTION;  BREACH  OF  CONTEACTS.  §  285 

refuses  to  allow  the  lessor  to  enter  to  plow  the  land,  or 
to  post  "to  let"  signs,  when  the  lease  expressly  per- 
mits.^® It  is  also  held  that  the  lessor  may  enjoin  a 
lessee  who  has  covenanted  not  to  sell  any  beer  on  the 
premises  except  that  furnished  by  the  plaintiff.^'^  And 
it  is  held  that  such  a  covenant  may  be  enforced  at  the 
suit  of  a  brewing  company,  not  a  party  to  the  contract, 
but  its  beneficiary.*®  In  some  states  an  insolvent  lessee 
will  be  restrained  from  disposing  of  property  subject 
to  a  landlord's  lien.*®  In  England  it  is  held  that  where 
a  lessee  builds  in  violation  of  a  covenant,  the  lessor  may 
have  a  mandatory  injunction.^* 

§  286.  Same — ^Rights  of  Lessee. — On  the  other  hand, 
the  lessee  is  frequently  allowed  an  injunction  against 
his  lessor.  If  the  lessor  covenants  as  to  the  use  of  his 
remaining  land,  the  lessee  may  enjoin  him  from  com- 
mitting a  breach.^^     He  may  also  enjoin  any  act  by  the 

46  State  Bank  of  Nebraska  v.  Rohren,  55  Neb,  223,  75  N.  W.  543; 
United  States  Trust  Co.  v.  O'Brien,  61  N.  Y.  Super.  Ct.  (29  Jones  & 
S.)  1,  18  N.  Y.  Supp.  798. 

47  Star  Brewery  Co.  v.  Primas,  163  HI.  652,  45  N.  E.  145.  la 
Luker  v.  Dennis,  L.  E.  7  Ch.  D.  227,  the  lessee  was  restrained  from 
selling  beer  at  another  public  house  owned  by  a  different  landlord, 
iu  violation  of  a  covenant  with  the  first  landlord.  See,  also,  Clegg 
V.  Hands,  L.  E.  44  Ch.  D.  503;  Stees  v.  Kranz,  32  Minn.  313,  20  N. 
W.  341;  Manchester  Brewing  Co.  v.  Coombs,  [1901]  2  Ch.  608  (cove- 
nant by  lessee  to  purchase  all  his  beer  of  the  lessor  or  "his  suc- 
cessors in  business,"  enforced  by  the  latter). 

48  Ferris  v.  American  Brewing  Co.,  58  N.  E.  701,  155  Ind,  539,  52 
L.  E.  A.  305. 

40  Gray  v.  Bremer  &  Strother,  122  Iowa,  110,  97  N.  W.  991;  Wal- 
lin  V.  Murphy,  117  Iowa,  640,  91  N.  W.  930. 

50  Wood  V.  Cooper,  [1894]   3  Ch.  671. 

51  Neiman  v.  Butler,  46  N.  Y.  St.  Rep.  928,  19  N.  Y.  Supp.  403; 
Rankin  v.  Huskisson,  4  Sim.  13;  Hovnanian  v.  Bedessern,  63  111.  App. 
353.  But  that  a  covenant  not  to  "let"  other  parts  of  a  building 
for  a  business  similar  to  lessee's  does  not  include  an  agreement  not 
to  "use"  for  such  purpose,  see  Brigg  v.  Thornton,  [1904]  1  Ch. 
386  (lessor  enjoined,  but  not  the  rival  lessee),  citing  Kemp  v.  Bird, 
L.  R.   5   Ch.  D.   974. 


S  286  EQUITABLE  REMEDIES.  51& 

lessor  which  will  make  the  lease  useless  or  of  less  value. 
Thus,  where  the  lessor  has  agreed  to  furnish  water  or 
power,  he  may  be  enjoined  from  cutting  it  off.^^  Like- 
wise, he  may  be  enjoined  from  pulling  down  the  build- 
ing for  the  purpose  of  erecting  a  new  one  or  of  adding 
to  the  old.'^  In  these  cases  the  courts  will  not  consider 
the  relative  inconvenience  to  the  parties.  Although  the 
construction  of  an  expensive  building  may  be  indell- 
nitely  postponed  as  the  result  of  an  injunction  issued 
at  the  suit  of  a  party  renting  onl\  a  few  rooms,  still,  if 
the  suit  is  brought  before  the  building  is  completed  or 
substantially  started,  relief  will  not  be  denied.  The 
principle  is  that  a  wrong-doer  should  not  be  allowed  to 
compel  an  innocent  party  to  sell  at  a  valuation.  After 
the  completion,  however,  a  mandatory  injunction  will 
not  issue  to  compel  removal.^*  Where  a  party  has 
leased  a  building  to  be  constructed  according  to  certain 
plans,  he  may  enjoin  a  construction  under  other  plans 
which  will  deprive  him  of  the  benefit  for  which  he  has 
contracted.^^  It  is  held  that  where  a  large  building  is 
rented,  according  to  a  general  scheme,  for  residence  pur- 
poses, a  lessee  may  enjoin  the  lessor  from  using  it  for 
other  purposes.^®     A  lessee  who  is  to  take  possession 

62  Hendricks  v.  Hughes,  117  Ala.  591,  23  South.  637;  Brauns  v. 
Glesige,  130  Ind.  167,  29  N.  E.  1061;  Traitel  Marble  Co.  v.  Chase,  35 
Misc.  Eep.  233,  71  N.  Y.  Supp.  628.  For  instances  of  relief  against 
interference  in  general,  see  Ingle  v.  Bottoms,  160  Ind.  73,  66  N.  E. 
160;  Foster  v.  Roseberry  (Tex.  Civ.  App.),  78  S.  W.  701  (against  in- 
solvent landlord). 

53  Brande  v.  Grace,  154  Mass.  210,  31  N.  E.  633;  Lynch  v.  Union 
Inst,  for  Savings,  158  Mass.  394,  33  N.  E.  603;  Proskey  v.  Cumber- 
land Eealty  Co.,  35  Misc.  Rep.  50,  70  N.  Y.  Supp.  1125. 

54  Brande  v.  Grace,  154  Mass.  210,  31  N.  E.  633;  Hessler  v.  Scha- 
fer,  20  Misc.  Eep.  645,  46  N.  Y.  Supp.  1076. 

6B  Backes  v.  Curran,  69  App.  Div.  188,  74  N.  Y.  Supp.  723. 

56  Hudson  V.  Cripps,  [1896]  1  Ch.  265.  And  where  a  covennnt, 
against  carrying  on  a  trade,  purports  to  bind  the  lessor,  his  heirs, 
executors  and  administrators,  it  may  be  enforced  against  his  other 


617  INJUNCTION;  BEEACH  OF  CONTEACTS.     §§  287,  28S 

in  the  future  cannot,  however,  enjoin  future  interfer- 
ence by  one  who  purchases  with  notice.'^ 

§  287.  Same — Rights  of  Sub-tenant. — Where  a  lessee  has 
contracted  with  third  persons  in  regard  to  the  use  of  the 
premises,  as  where  the  lessee  of  a  trotting  park  gives  a 
sign  privilege,  or  where  a  hotel  lessee  gives  an  exclusive 
right  to  a  telegraph  company,  such  person  may  enjoin 
a  breach.^*  In  such  cases  it  is  immaterial  that  the  lease 
prohibits  the  acts. 

§  288.  Contracts  for  Personal  Services  of  Special  Char- 
acter— "Where  a  contract  stipulates  for  special,  unique 
or  extraordinary  personal  services  or  acts,  or  for  such 
services  or  acts  to  be  rendered  or  done  by  a  party  hav- 
ing special,  unique,  and  extraordinary  qualifications, — 
as,  for  example,  by  an  eminent  actor,  singer,  artist,  and 
the  like, — it  is  plain  that  the  remedy  at  law  of  damages 
for  its  breach  might  be  wholly  inadequate,  since  no 
amount  of  money  recovered  by  the  plaintiff  might  en- 
able him  to  obtain  the  same  or  the  same  kind  of  ser- 
vices or  acts  elsewhere,  or  by  employing  any  other  per- 
son. It  is,  however,  a  familiar  doctrine  that  a  court 
of  equity  will  not  exercise  its  jurisdiction  to  grant  the 
remedy  of  an  affirmative  specific  performance,  however 
inadequate  may  be  the  remedy  of  damages,  whenever 
the  contract  is  of  such  a  nature  that  the  decree  for  its 
specific  performance  cannot  be  enforced  and  its  obedi- 
ence compelled  by  the  ordinary  processes  of  the  court. 
A  specific  performance  in  such  cases  is  said  to  be  im- 

lessees:  Holloway  Bros.,  Ltd.,  v.  Hill,  [1902]  2  Ch.  612,  citing  John- 
stone V,  Hall,  2  Kay  &  J.  414,  Wilson  v.  Hart,  L.  E.  1  Ch.  463,  and 
Feilden  v.  Slater,  L.  E.  7  Eq.  523. 

57  Forbes  v.  Carl   (Iowa),  101  N.  W.  100, 

58  Willoughby  v.  Lawrence,  116  111.  11,  56  Am.  Eep.  758,  4  N.  E. 
356;    Western  Union  Tel.  Co.  v.  Eogers,  42  N.  J.  Eq.  311,  11  Atl.  13. 


I  289  EQUITABLE  EEMEDIES.  518 

possible;  and  contracts  stipulating  for  personal  acts 
have  been  regarded  as  the  most  familiar  illustrations  of 
this  doctrine,  since  the  court  cannot  in  any  direct  man- 
ner compel  an  actor  to  act,  a  singer  to  sing,  or  an  artist 
to  paint.  Applying  the  same  course  of  reasoning,  the 
English  courts  formerly  held  that  they  could  not  nega- 
tively enforce  the  specific  performance  of  such  con- 
tracts by  means  of  an  injunction  restraining  their  vio- 
lation.'** Those  courts  have,  however,  entirely  receded 
from  this  latter  conclusion.  The  rule,  [as  late  as  1891, 
appeared  to  be]  firmly  established  in  England  that  the 
violation  of  such  contracts  may  be  restrained  by  in- 
junction, whenever  the  legal  remedy  of  damages  would 
be  inadequate,  and  the  contract  is  of  such  a  nature  that 
its  negative  specific  enforcement  is  possible"  ;^°  and  as 
io  formulated,  the  rule  is  now  generally  accepted  and 
applied  in  this  country. 

§  28^.  Same;  Lumley  v.  Wagner — Whether  Stipulation 
Must  be  Expressly  Negative  in  Form. — The  leading  case  on 
the  subject  is  Lumley  v.  Wagner  (1852).^^  In  that  case 
a  famous  "prima   donna"    agreed  to   sing  in  the  com- 

5»  4  Pom.  Eq.  Jur.,  $  1343;  citing  Kemble  v.  Kean,  6  Sim.  333; 
Kimberley  v.  Jennings,  6  Sim.  340.  These  cases  were  expressly  over- 
ruled by  Lumley  v.  Wagner,  but  have  a  considerable  following  in 
the  earlier  American  cases;  see,  for  example,  Sanquirico  v.  Bene- 
detti,  1  Barb.  315. 

60  4  Pom.  Eq.  Jur.,  §  1343.  For  the  recent  restriction  of  the  rule 
in  England,  see  the  next  section.  The  stipulation  on  the  defendant's 
part,  express  or,  it  may  be,  implied,  not  to  engage  in  an  employment 
inconsistent  with  his  contract  obligation  to  the  defendant,  is  freely 
enforced  by  injunction,  notwithstanding  that  the  complainant 's  ob- 
ligation is  frequently  of  a  character  incapable  of  enforcement  by 
the  processes  of  a  court  of  equity:  See  ante,  §  270,  notes.  For  the 
bearing  of  these  cases  on  the  doctrine  as  to  mutuality  of  remedy  in 
the  law  of  specific  performance,  see  post.  Vol.  II,  chapter  on  Specific 
Performance. 

61  1   De   Gex,   M.   &  G.   604. 


619  INJUNCTION;  BEEACH  OF  CONTRACTS.  8  289 

plainant's  opera-house  for  a  certain  time  and  not  to 
sing  for  anyone  else  during  that  time.  The  court  held 
that  the  services  were  of  such  a  character  that  damages 
would  be  inadequate,  and  that  therefore  an  injunction 
was  proper  to  restrain  the  defendant  from  singing  else- 
where. The  opinion  of  Lord  Chancellor  St.  Leonards 
fully  reviews  the  previous  authorities,  and  has  been  gen- 
erally accepted,  both  in  England  and  in  this  country, 
upon  a  similar  state  of  facts.  The  most  frequent  ap- 
plication has  been  in  cases  of  actors  and  actresses  of  es- 
tablished reputation.^2  Contracts  for  their  services 
often  stipulate  that  they  shall  not  perform  elsewhere 
during  their  engagement  with  a  particular  manager. 
Their  services  being  extraordinary  and  special,  an  in- 
junction is  generally  granted  against  the  breach  of  such 
a  stipulation.  It  will  likewise  be  granted  when  an 
artist  agrees  to  work  for  the  complainant  and  for  no 
one  else.^*  Miscellaneous  cases  will  be  found  in  the 
nota  Upon  the  question  whether  the  negative  covenant 
must  be  express  in  order  to  warrant  an  injunction,  there 
is  now  a  direct  conflict  of  opinion.  In  England  it  was 
formerly  (1873)  held  that  a  negative  would  be  implied 
in  cases  of  this  kind,  and  that  the  implied  covenant 
would  be  enforced  by  injunction.®^  Later  (1891)  it  was 
held  that  a  negative  will  not  be  implied  even  where  the 

62  Daly  V.  Smith,  38  N.  Y,  Super,  Ct.  158;  Hayes  v.  Willis,  11  Abb. 
Pr.,  N.  S.,  167;  McCaull  v,  Braham,  16  Fed.  37;  Canary  v.  Eussell, 
9  Misc.  Eep.  558,  30  N.  Y.  Supp.  122.  See  contra,  Sanquirico  v. 
Benedetti,  1  Barb.  315. 

63  Fredericks  v.  Mayer,  13  How.  Pr.  566   {dictum). 
Miscellaneous. — In   Morris   v.   Colman,   18   Ves.    436,   a   playwright 

was  enjoined  from  writing  for  another  theater  in  violation  of  con- 
tract. In  Philadelphia  Ball  Club  v.  Lajoie,  202  Pa.  St.  210,  90  Am. 
St.  Eep.  627,  51  Atl.  973,  58  L.  E.  A.  227,  a  professional  baseball 
player  was  enjoined  from  playing  with  any  other  club. 

64  Montague  v.  Flockton,  L.  E.  16  Eq.  189.  See,  also,  De  Mattes 
V.  Gibson,  [1859]  4  De  Gex  &  J.  276  {semble,  injunction  proper  to 
enforce  a  charter-party  containing  no  express  negative  stipulation). 


I  290  EQUITABLE  EEMEDIES.  520 

defendant  has  agreed  to  give  the  "whole  of  his  time"  to 
the  complainant's  business;  and  the  case  last  referred 
to  was  expressly  overruled.*^^  This  late  restriction  of 
the  rule  in  England  appears  to  have  had  little  influence 
in  the  United  States.*^^  In  New  York,  where  this  class 
of  contracts  has  most  frequently  come  before  the  courts, 
it  seems  to  be  established  that  where  a  contract  is  in- 
tended "to  give  the  plaintiffs,  not  the  divided,  but  ex- 
clusive, services  of  the  defendant  .  ,  ,  ,  a  negative 
clause  is  unnecessary."^^ 

§  290.  Same — No  Relief  upon  Contracts  for  Ordinary  Ser- 
vices.— Where  the  services  contracted  for  are  neither 
special,  extraordinary  nor  unique,  the  courts  generally 
refuse  equitable  relief.  "It  may  sometimes  be  difficult 
to  say  just  what  is  a  special,  unique  and  extraordinary 

65  Whitwood  Chemical  Co.  v.  Hardman,  [1891]  L.  E.  2  Ch.  416; 
Lindley,  L.  J.,  took  strong  ground  against  the  policy  of  enjoining 
breaches  of  negative  contracts,  and  spoke  of  Lumley  v.  Wagner  as 
an  "anomaly."  In  Clarke  v.  Price,  [1819]  2  Wils.  Ch.  157,  Lord 
Eldon  had  refused  to  enjoin  the  defendant  from  writing  law  books 
for  another  firm.  There  was  no  express  negative  stipulation.  It 
should  be  observed  that  this  restrictive  rule  of  Whitwood  Chemical 
Co.  V.  Hardman,  supra,  applies  to  contracts  for  personal  ser- 
vices only;  in  other  kinds  of  contracts  a  negative  may  still  be  im- 
plied; 80  explained  in  the  recent  case.  Metropolitan  Electric  Supply 
Co.,  Ltd.,  V.  Gender,   [1901]    2  Ch.  799. 

66  Holding  an  express  negative  necessary,  see  the  early  case.  Bur- 
ton V.  Marshall,  4  Gill,  487,  45  Am.  Dec.  171;  contra,  Cort  v.  Lassard, 
18  Or.  221,  17  Am.  St.  Kep.  726,  22  Pac.  1054,  6  L.  E.  A.  653.  In 
this  case  the  court  said:  "The  agreement  to  perform  at  a  particular 
theater  for  a  particular  time  of  necessity  involves  an  agreement 
not  to  perform  at  any  other  during  that  time.  According  to  the 
true  spirit  of  such  an  agreement,  the  implication  precluding  the  de- 
fendant from  acting  at  any  other  theater  during  the  period  for 
which  he  has  agreed  to  act  for  the  plaintiff  follows  as  inevitably 
and   logically   as   if   it   was   expressed." 

67  Hoyt  V.  Fuller,  19  N.  Y.  Supp.  962;  Duff  v.  Eussell,  133  N.  Y. 
678,  31  N.  E.  622,  affirming  41  N.  Y.  St.  Eep.  955,  16  N.  Y.  Supp.  958, 
and  60  N.  Y.  Super.  Ct.  80,  14  N.  Y.  Supp.  134,  on  opinion  in  latter 
case;  Daly  v.  Smith,  38  N.  Y.  Sup.  Ct.  158    {dictum). 


621  INJUNCTION;  BREACH  OF  CONTEACTS.  §  291 

service,  or  whether  the  employee  possesses  special,  uni- 
que or  extraordinary  qualifications.  The  solution  may 
generally  be  reached  by  an  inquiry  as  to  whether  a  sub- 
stitute for  the  employee  can  readily  be  obtained,  and 
whether  such  substitute  will  substantially  answer  the 
purpose  of  the  contract;  in  other  words,  whether  the 
individual  service  specially  contracted  for  is  essential 
to  prevent  irreparable  injury."®^  Accordingly,  when  it 
appears  that  the  plaintiff  has  himself  substituted  an- 
other in  place  of  the  defendant,  an  injunction  has 
been  refused.^®  In  the  note  will  be  found  a  number  of 
instances  where  it  has  been  held  that  the  employment 
is  not  so  special  as  to  warrant  an  in j  unction J'^ 

§  291.    Limitations — It  is  held  that  an  employee  can- 
not restrain  his  employer  from  discharging  him.'^^     In 

68  Strobridge   Lithographing  Co.  v.  Crane,   12   N.  Y.   Supp.   898. 

69  W.  J.  Johnston  Co.  v.  Hunt,  66  Hun,  504,  21  N.  Y.  Supp.  314, 
affirmed,  142  N.  Y.  621,  37  N.  E.  564. 

70  Lithographer— Sttobridge  Lith.  Co.  v.  Crane,  58  Hun,  611,  12 
N.  Y.  Supp.  898.  Solicitor— Burney  v.  Eyle,  91  Ga.  701,  17  S.  E.  986. 
Miscellaneous — Rogers  Mfg.  Co.  v.  Rogers,  58  Conn.  356,  20  Atl. 
467,  18  Am.  St.  Rep.  278,  7  L.  R.  A.  779;  Universal  Talking  Mach. 
Co.  V.  English,  34  Misc.  Rep.  342,  69  N.  Y.  Supp.  813;  Carter  v.  Fer- 
guson, 58  Hun,  569,  12  N.  Y.  Supp.  580  (actor  of  no  extraordinary 
qualifications;  quoting  Pom.  Eq.  Jur.,  §  1343);  Cort  v.  Lassard,  18 
Or.  221,  17  Am.  St.  Rep.  726,  22  Pac.  1054,  6  L.  R.  A.  653  (acrobat) ; 
Kimberly  v.  Jennings,  6  Sim.  340;  Chain  Belt  Co.  v.  Von  Spreckelsen, 
117  Wis.  106,  94  N.  W.  78.  See,  also,  Eberman  v.  Bartholomew,  [1898] 
1  Ch.  671  (agreement  of  traveling  agent  of  wine  merchants  "not  to 
engage  in  any  other  business"  during  the  ten  years'  term  of  employ- 
ment contracted  for;  injunction  refused,  on  the  ground  that  the 
stipulation   was   unreasonable). 

71  Davis  V.  Foreman,  [1S94]  3  Ch.  654;  Miller  v.  Warner,  42  App. 
Div.  208,  59  N.  Y.  Supp.  956;  Stewart  v.  Pierce,  116  Iowa,  733,  69 
N.  W.  234.  See,  also,  Welty  v.  Jacobs,  171  111.  624,  49  N.  E.  723, 
40  L.  R.  A.  98;  Stocker  v.  Brockelbank,  3  Macn.  &  G.  250.  But 
Bee  Jones  v.  Williams,  139  Mo.  1,  61  Am.  St.  Rep.  436,  39  S.  W.  48rt, 
40  S.  W.  353,  37  L.  R.  A.  682,  where  such  relief  was  allowed  on  spe- 
cial  facts. 


if  292,293  EQUITABLE  REMEDIES.  522 

general,  in  applying  the  remedy  the  courts  will  be  bound 
by  the  equitable  principles  which  govern  the  remedy  of 
specific  performance.  The  rights  of  third  persons  will 
be  considered;  and  if  the  granting  of  equitable  relief 
will  work  an  injustice  to  innocent  third  parties  who 
have  contractual  rights  with  the  employee,  it  will  be 
refused.'^  Nor  will  an  injunction  be  granted  when  the 
agreement  is  uncertain  or  where  it  would  work  a  hard- 
ship on  the  defendant.'^^  By  hardship  must  be  under- 
stood such  hardship  as  would  be  a  defense  to  a  bill  for 
specific  performance. 

§  292.  Other  Agreements,  Generally  Negative  in  Their 
Kature. — "In  all  these  agreements,  where  the  stipula- 
tions are  expressly  negative  in  form,  and  where  they  be- 
long to  a  class  of  which  the  specific  performance  would 
be  enforced  if  they  were  affirmative  in  form,  an  injunc- 
tion to  restrain  their  violation  will  be  granted  as  a 
general  rule,  and  almost  as  a  matter  of  course.  The 
inadequacy  of  the  legal  remedy  is  the  criterion ;  but  the 
fact  that  the  agreements  belong  to  a  class  which  would 
be  specifically  enforced  necessarily  shows  that  the  legal 
remedy  is  inadequate."'^*  Among  the  commonest  of 
Buch  agreements  are  those  (1)  not  to  carry  on  a  trade 
or  (2)  not  to  compete;  and  (3)  agreements  giving  an  ex- 
elusive  right. 

§  293.  Agreements  not  to  Carry  on  a  Trade,  Express  or 
Implied — Sale  of  Good-will. — A  class  of  cases  where  in- 
junction is  held  to  be  a  proper  remedy  to  restrain  the 

72  Eoosen  v.  Carlson,  46  App.  Div.  233,  47  App.  Div.  638,  62  N.  Y. 
Supp.  157. 

73  Arena  Athletic  Club  v,  McPartland,  41  App.  Div.  352,  58  N. 
Y.  Supp.  477;  Metropolitan  Exhibition  Co.  v.  Ewing,  42  Fed.  198, 
7  L.  R.  A.  381;  Rice  v.  D'Arville,  162  Mass,  559,  39  N.  E.  180. 

74  Pom.  Eq.  Jur.,  §  1344. 


623  INJUNCTION;  BREACH  OF  CONTRACTS.  §  293 

breach  of  contract  is  where  there  is  an  agreement  not 
to  engage  in  a  particular  profession  or  trade.  A  dis- 
cussion of  the  rules  as  to  the  validity  of  contracts  in 
restraint  of  trade  belongs  properly  to  a  treatise  on  the 
law  of  contracts.  Where  such  a  contract  is  illegal,  of 
course  equity  will  not  enjoin  a  breach  f^  the  questions  to 
be  here  considered,  therefore,  concern  the  remedy  by 
injunction  against  violations  of  valid  contracts  of  this 
character. 

It  is  very  common,  when  a  tradesman  sells  his  busi- 
ness to  another  or  retires  from  a  partnership,  to  insert 
a  stipulation  in  the  agreement  that  the  selling  party 
shall  not  engage  in  a  similar  business  within  certain 
prescribed  limits.  These  agreements  are  usually  up- 
held as  reasonable  restraints  of  trade.  Equity  courts 
will  grant  injunctive  relief  against  violations  because 
generally  the  remedy  of  damages  is  inadequate.^*     The 

75  See,  also,  2  Pom.  Eq.  Jur.,  §  934. 

76  Rolfe  V.  Rolfe,  15  Sim.  88;  Williams  v.  Williams,  2  Swans.  253; 
Nordenfelt  v.  Maxim-Nordenfelt  G.  &  A.  Co.,  Ltd.,  [1894]  App.  Cas. 
S35;  Davis  v.  A.  Booth  &  Co.,  131  Fed.  31,  65  C.  C.  A.  269  (affirming 
127  Fed.  875);  American  Fisheries  Co.  v.  Lennen,  118  Fed.  869; 
Moore  etc.  Hardware  Co.  v.  Towers  Hardware  Co.,  87  Ala.  206,  13 
Am.  St.  Rep.  23,  6  South.  41;  Brown  v.  Kling,  101  Cal.  295,  35  Pac. 
9?5;  Mullis  v.  Nichols,  105  Ga.  465,  30  S.  E.  654;  W.  F.  Markert  & 
Co.  V.  Jefferson  (Ga.),  50  S.  E.  398;  Frazer  v.  Frazer  Lubricator  Co., 
121  111.  147,  2  Am.  St.  Rep.  73,  13  N,  E.  639;  Beard  v.  Dennis,  6  Ind. 
200,  63  Am.  Dec.  380;  Baker  v.  Pottmeyer,  75  Ind.  451;  Eisel  v. 
Haves,  141  Ind.  41,  40  N.  E.  119;  Swigert  v.  Tilden,  121  Iowa,  650, 
100  Am.  St.  Rep.  374,  97  N.  W.  82;  Pohlinan  v.  Dawson,  63  Kan. 
471,  88  Am.  St.  Rep.  249,  65  Pac.  689,  54  L.  R.  A.  913;  Gueraud  v. 
Bandelet,  32  Md.  561,  3  Am.  Rep.  164;  Anchor  Elect.  Co.  v.  Hawkes, 
171  Mass.  101,  68  Am.  St.  Rep.  403,  50  N.  E.  509,  41  L.  R.  A.  189; 
Ropes  V.  Upton,  125  Mass.  258;  Angler  v.  Webber,  96  Mass.  (14 
Allen)  211,  92  Am.  Dec.  748;  Up  River  Ice  Co.  v.  Denier,  114  Mich. 
296,  68  Am.  St.  Rep.  480,  72  N.  W.  157;  Beal  v.  Chase,  31  Mich. 
490;  Grow  v.  Seligman,  47  Mich.  607,  41  Am.  Rep.  737,  .11  N.  W. 
404;  Hubbard  v.  Miller,  27  Mich.  15,  15  Am.  Rep.  153;  Downing  v. 
Lewis,  56  Neb,  386,  76  N.  W.  900;  Bailey  v.  Collins,  59  N.  H.  459; 
Richardson  v.  Peacuck,   26   N.  J.  Eq.  40,   28  N.  J.  Eq.   151,  33  N.  J. 


i  293  EQUITABLE  EEMEDIES.  524 

relief  is  not  confined  to  contracts  between  parties  en- 
gaged in  trade,  but  applies  equally  to  contracts  be- 
tween professional  men,  such  as  physicians,  lawyers 
and  the  likeJ^  It  must  be  certain  that  there  has  been 
a  violation  before  the  court  will  interfered*     The  bene- 

Eq.  597;  Scudder  v.  Kilfoil,  57  N.  J.  Eq.  171,  40  Atl.  602,  43  L.  K.  A. 
86;  Fleckenstein  Bros.  Co.  v.  Fleckenstein  (N.  J.  Eq.),  53  Atl.  1043; 
Jarvis  v.  Peck,  10  Paige,  118;  A.  Booth  &  Co.  v.  Seibold,  37  Misc. 
Kep.  101,  74  N.  Y.  Supp.  776;  Zimmerman  v.  Gerzog,  13  App.  Div. 
210,  43  N.  Y.  Supp.  339;  United  States  Cordage  Co.  v.  Wm.  Wall's 
Sons  Eope  Co.,  90  Hun,  429,  35  N.  Y.  Supp.  978;  Diamond  Match 
Co.  V.  Koeber,  106  N.  Y,  473,  60  Am.  Eep.  464,  13  N.  E. 
419;  Francisco  v.  Smith,  143  N.  Y,  488,  38  N,  E.  980;  Baumgartner 
V.  Broadway,  77  N.  C.  8;  Kramer  v.  Old,  119  N.  C.  1,  25  S.  E.  813, 
66  Am.  St,  Eep.  650,  34  L.  E,  A.  389;  Cowan  v.  Fairbrother,  118  N. 
C.  406,  54  Am.  St.  Eep.  733,  24  S.  E.  212,  32  L.  E.  A.  829;  Morgan 
V.  Perhamus,  36  Ohio  St.  517,  38  Am.  Eep.  607;  Patterson  v.  Glass- 
mire,  166  Pa.  St.  230,  31  Atl.  40;  Stofflet  v.  Stofflet,  160  Pa.  St.  529, 
28  Atl.  857;  Monongahela  Eiver  Consol.  Coal  &  Coke  Co.  v.  Jutte 
(Pa.),  59  Atl.  1088;  Oakdale  Mfg.  Co.  v.  Garst,  18  E.  I.  484,  49  Am. 
St.  Eep.  784,  28  Atl.  973,  23  L.  E.  A.  639;  Jackson  v.  Byrnes,  103 
Tenn.  698,  54  S.  W.  984  (dictum).  See,  also.  Turner  v.  Evans,  2  Da 
Gex,  M.  &  G.  740.  In  O'Neal  v.  Hines,  145  Ind.  32,  43  N.  E.  94G, 
the  court  laid  down  the  rule  as  follows:  "It  is  a  general  rule  that 
when  one  has  made  a  valid  contract  with  another  that  he  will  not 
engage  in  a  certain  business  or  occupation,  and  it  is  shown  by  the 
other  party  to  the  contract  that  the  same  is  being  violated  to  hia 
injury,  he  is  entitled  to  an  injunction  restraining  the  offending  party. 
This  is  upon  the  ground  that  from  the  nature  of  the  case  just  and 
adequate  damages  cannot  be  estimated  for  a  breach  of  the  contract." 

77  In  the  following  cases  the  rule  was  laid  down  in  contracts  be- 
tween physicians:  McCurry  v.  Gibson,  108  Ala.  451,  51  Am.  St.  Eep. 
177,  IS  South.  S'Jo;  Beatty  v.  Coble,  142  Ind.  329,  41  N.  E.  590; 
Cole  V.  Edwards,  93  Iowa,  477,  61  N.  W.  940;  Doty  v.  Martin,  32 
Mich.  462;  Timmerman  v.  Dever,  52  Mich.  34,  50  Am.  Eep.  240,  17 
N.  W.  230;  McClurg's  Appeal,  58  Pa.  St.  51;  Wilkinson  v.  Coiley, 
164  Pa.  St.  35,  30  Atl.  286,  35  Week.  Not.  Cas.  177,  26  L.  E.  A.  114; 
French  v.  Parker,  16  E.  I.  219,  27  Am.  St.  Eep.  733,  14  Atl.  870;  Butler  v. 
Burleson,  16  Vt.  176;  Hulen  v.  Earel,  13  Okla.  246,  73  Pac.  927  (dic- 
tum); Eyan  v.  Hamilton,  203  HI.  191,  68  N.  E.  781.  Lawyer— Whitta- 
ker  V.  Howe,  3  Beav.  383.  Dentist — Niles  v.  Fenn,  12  Misc.  Eep.  470, 
33  N.  Y.  Supp.  857.     Playwright — Moris  v.  Coleman,  18  Ves.  436. 

78  Caswell  V.  Gibbs,  33  Mich.  331;  Bowers  v.  Whittle,  63  N.  H. 
147,  56  Am.  Eep.  499. 


625  INJUNCTION;  BREACH  OF  CONTRACTS,  §  293 

fit  of  the  covenant  may  be  assigned  with  the  business, 
and  the  assignee's  rights  will  be  protected  by  injunc- 
tion.^® What  amounts  to  a  breach  is  a  question  of 
substantive  law ;  but  the  courts  of  equity  will  not  allow 
a  violation  under  color  of  compliance  with  the  letter 
of  the  contract  Thus,  an  injunction  will  not  be  denied 
because  the  promisor  has  taken  in  a  partner  or  has 
formed  a  corporation  to  compete  with  the  plaintiff,  or 
has  put  the  business  in  his  wife's  name.^*^  Where  it 
appears  that  the  parties  engaging  in  business  with  the 
party  violating  the  agreement  had  notice  of  its  terms, 
they  may  be  enjoined  from  carrying  it  on  in  connection 
with  him.*^  Third  parties,  however,  will  not  be  en- 
joined from  receiving  business  aid  from  such  person, 
nor  from  purchasing  goods  from  him.^^  As  the  injury 
is  difficult  to  measure  in  all  these  cases,  only  nominal 
damage  need  be  shown.^^     The  injured  party  need  not 

79  Cowan  ▼.  Fairbrother,  118  N.  C.  406,  54  Am.  St.  Rep.  733,  24 
S.  B.  212,  32  L.  R.  A.  829;  Francisco  v.  Smith,  143  N.  Y.  488,  38 
N.  E.  980;  Fleckenstein  Bros.  Co.  v.  Fleckenstein  (N.  J.  Eq.),  53 
Atl.  1043. 

80  Beard  v.  Dennis,  6  Ind.  200,  63  Am,  Dec.  380;  Kramer  v.  Old, 
119  N.  C.  1,  56  Am.  St,  Rep,  650,  25  S.  E,  813,  34  L.  R.  A,  389;  Up 
River  Ice  Co.  v.  Denier,  114  Mich,  296,  68  Am,  St,  Rep.  480,  72  N. 
"W.  157;  Pittsburg  Stove  &  Range  Co.  v.  Pennsylvania  Stove  Co,,  208 
Pa.  St.  37,  57  Atl,  77.  When  the  business  belongs  to  the  wife,  how- 
ever, and  not  to  the  husband,  she  is  not  bound  by  the  covenant:  Smitli 
V.  Hancock,  [1894]  2  Ch.  377;  Fleckenstein  Bros,  Co.  v,  Flecken- 
stein (N.  J.  Eq.),  57  Atl,  1025,  In  Gophir  Diamond  Co.  v.  Wood, 
[1902]  1  Ch.  950,  it  was  held  that  a  covenant  not  to  become  directly 
or  indirectly  "interested"  in  a  similar  business  to  that  of  the  cove- 
nantee does  not  prevent  the  covenantor  from  becoming  a  servant  at 
a  fixed  salary  in  a  similar  business. 

81  A.  Booth  &  Co.  V.  Seibold,  37  Misc.  Rep.  101,  74  N,  Y.  Supp. 
776. 

82  Appeal  of  Harkinson,  78  Pa.  (28  P.  F.  Smith)  196,  21  Am.  Rep. 
9;  Reeves  v.  Sprague,  114  N.  C.  647,  19  S.  E.  707. 

83  Brown  v.  King,  101  CaL  295,  35  Pac.  995;  Andrews  ▼.  Kings- 
bury  (HI.),  72  N.  E.  11. 


§  293  EQUITABLE  EEMEDIES.  526 

establish  his  right  at  law.®"*  In  Pennsylvania,  it  is  held 
that  damages  will  be  awarded  in  connection  with  the 
equitable  relief.^' 

It  is  questionable  whether  an  express  negative  cove- 
nant is  necessary,  the  same  conflict  of  opinion  existing 
here  as  in  regard  to  injunctions  against  the  violation  of 
contracts  of  personal  service.  In  some  jurisdictions  it  is 
held  as  a  matter  of  substantive  law  that  no  covenant  not 
to  engage  in  business  can  be  implied  from  a  sale  of  good- 
will, and  of  course  an  injunction  is  denied.^^  In  a  late 
case  it  is  said  that  "where  the  good-will  of  a  business  is 
sold,  without  further  provision,  the  vendor  may  set  up 
a  rival  business,  but  he  is  not  entitled  to  canvass  the 
customers  of  the  old  firm,  and  may  be  restrained  by  in- 
junction from  soliciting  any  person  who  was  a  customer 
of  the  old  firm  prior  to  the  sale  to  continue  to  deal  with 
the  vendor  or  not  to  deal  with  the  purchaser."*^  It  has 
been  held  that  where  a  physician  sells  the  good-will  of 
his  practice  or  agrees  to  retire,  an  injunction  will  issue 
to  restrain  him  from  continuing  in  practice.***     And  an 

84  Carll  V.  Snyder  (N.  J.  Eq.),  26  Atl.  977. 

85  Stofflet  V.  Stofflet,  160  Pa.  St.  529,  28  Atl.  857;  Patterson  v. 
Glassmire,  166  Pa.  St.  230,  31  Atl.  40. 

86  Jackson  v.  Byrnes,  54  S.  W.  984,  103  Tenn.  698;  Newark  Coal 
Co.  V.  Spangler,  54  N.  J.  Eq.  354,  34  Atl.  932;  Close  v.  Flesher,  8 
Misc.  Eep.  299,  28  N.  Y.  Supp.  737;  MacMartin  v.  Stevans  (Wash.), 
79  Pae.  1099.  For  a  definition  of  "good-will,"  see  4  Pom.  Eq.  Jur., 
S  1355. 

87  Althen  v.  Vreeland  (N.  J.  Eq.),  36  Atl.  479.  See  similar  state- 
ments in  Zantierjian  v.  Boornazian  (R.  I.),  55  Atl.  199;  Trego  v. 
Hunt,  [1896]  App.  Cas.  7;  Gillingham  v,  Beddow,  [1900]  2  Ch.  242; 
Curl  Brothers,  Ltd.,  v.  Webster,  [1904]  1  Ch.  685;  Eauft  v.  Reimers 
(111.),  65  N.  E.  720.  The  vendor  will  not  be  restrained  from 
merely  dealing  with  former  customers;  Leggott  v.  Barrett,  15  Ch. 
D.  306.  It  has  been  held  that  this  rule  does  not  apply  as  against 
a  bankrupt  whose  good-will  has  been  sold  by  his  trustees  in  bank- 
ruptcy:  Walker  v.  Moltram,  19  Ch.  D.  355. 

88  Dwight  V.  Hamilton,  113  Mass.  175;  Beatty  v.  Coble,  142  Ind. 
329,  41  N.  E.  S90. 


527  INJUNCTION;  BREACH  OF  CONTRACTS.  9  294 

injunction  has  been  granted  to  restrain  parties  who 
have  sold  good-will  from  using  a  firm  name  similar  to 
that  of  the  firm  from  which  they  have  retired.^* 

An  injunction  will  not  issue  when  it  would  be  in- 
equitabla  Thus,  when  a  party  signs  an  agreement 
without  reading  it  and  plaintiff  makes  no  objection  un- 
til the  defendant  has  expended  a  large  sum  in  fitting 
up  his  place  of  business,  an  injunction  will  be  refused.^*^ 
Likewise,  it  will  not  issue  against  mere  nominal  mem- 
bers of  a  firm,  the  active  members  of  which  have  agreed 
for  the  firm  not  to  engage  in  certain  business.^^ 

In  some  jurisdictions  it  is  held  that  these  agreements 
are  valid  and  will  be  enforced  only  when  the  promisor 
sells  out  his  business  or  retires  from  the  firm.'^ 

§  294.  Same — Injunctions  Against  Employees. — Where 
an  employee  stipulates  that  he  will  not  engage  in  simi- 
lar business  within  a  certain  territory  for  a  certain  pe- 
riod after  the  termination  of  his  employment,  an  in- 
junction will  issue  to  restrain  a  breach.^^  But  where 
the  restraint  is  unreasonable  and  extends  beyond  any- 

89  Myers  v.  Kalamazoo  Buggy  Co.,  54  Mich.  215,  52  Am.  Rep.  811, 
19  N.  W.  yiii,  20  N.  W.  -545. 

90  Smith  V.  Brown,  164  Mass.  584,  43  N.  E.  101. 

91  United  States  Cordage  Co.  v.  Wm.  Wall's  Sons  Rope  Co.,  90 
Hun,  429,  35  N.  Y.  Supp.  978. 

92  Chapin  v.  Brown,  83  Iowa,  156,  32  Am.  St.  Rep.  297,  48  N.  W. 
1074,  12  L.  R.  A.  428.  Thus,  in  California,  an  agreement  by  a  vendor 
of  stock  in  a  corporation  not  to  engage  in  the  same  business  cannot 
be  enforced:  Dodge  Stationery  Co.  v.  Dodge,  145  Cal.  380,  78  i'ac-. 
879. 

93  Davies  v.  Racer,  72  Hun,  43,  25  N.  Y.  Supp.  293;  A.  L.  &  J.  J. 
Reynolds  Co.  v.  Dreyer,  12  Misc.  Rep.  368,  33  N.  Y.  Supp.  649;  Hayes 
V.  Doncan,  [1899]  2  Ch.  13.  See,  also,  Robinson  v.  Heuer,  67  L.  J. 
Oh.  644,  [1898]  2  Ch.  451,  79  L.  J.,  N.  S.,  281,  47  Week.  Rep.  31 
(not  to  compete  during  term  of  employment);  Dubowski  v,  Goldstein, 
U896]  1  Q.  B.  478. 


§  295  EQUITABLE  EEMEDIES.  52* 

thing  apparently  necessary   for  the  protection   of  the 
employer,  an  injunction  will  be  refused.** 

§  295.  Agreements  not  to  Compete. — Instances  of  such 
agreements  enforced  by  injunction  are:  An  agreement 
by  a  rival  quarry  not  to  supply  stone  to  a  municipal 
corporation  during  a  certain  period  ;^^  an  agreement 
by  a  city  with  a  water  company  not  to  build  rival  water- 
works f  a  contract  between  plaintiff,  a  manufacturer 
of  patterns,  and  defendant,  a  dealer,  whereby  the  lat- 
ter was  appointed  agent  of  the  former  for  the  sale  of 
its  patterns,  defendant  covenanting  not  to  sell,  or  allow 
to  be  sold,  on  his  premises  any  other  make  of  patterns; 
specific  performance  was  refused  of  the  contract  in  its  en- 
tirety, but  defendant  enjoined  from  selling  patterns 
of  another  make.^'^  It  has  been  held,  however,  that  a 
vendor  cannot  restrain  his  vendee  from  selling  a  pat- 
ented article  at  less  than  a  fixed  price,  in  violation  of 
contract.** 

94  Herreshoff  v.  Boutineau,  17  E.  I.  3,  33  Am.  St.  Rep.  850,  19  AtL 
712,  8  L.  E.  A.  469;  Stanley  v.  Pollard,  5  Mise.  Eep.  490,  2d  N.  Y. 
Supp.  766.  See,  also,  Ehrmann  v.  Bartholomew,  67  L.  J.  Ch.  319, 
[1898]  1  Ch.  671,  78  L.  J.,  N.  S.,  646,  46  Week.  Eep.  509. 

96  Jonea  v.  North,  L.  E.  19  Eq.  426. 

M  City  of  Walla  Walla  v.  Walla  Walla  Water  Co.,  172  U.  S.  1^ 
19  Sup.  Ct.  77;  the  remedy  at  law  by  recovery  of  damages  held  to 
be  inadequate:  Columbia  Ave.  etc.  Co.  v.  City  of  Dawson,  130  Fed. 
152;  Farmers'  Loan  &  Trust  Co.  v.  City  of  Sioux  Falls,  131  Fed.  890. 
See  post,  §  299. 

97  Standard  Fashion  Co.  v.  Siegel-Cooper  Co.,  157  N.  Y.  66,  68  Am. 
St.  Eep.  749,  51  N.  E.  408,  affirming  30  App.  Div.  564,  52  N.  Y.  Supp. 
433,  and  reversing  22  Misc.  Eep.  624,  50  N.  Y.  Supp.  1056.  It  is 
observed  that  "the  court  should  extend  its  remedy  as  far  as  it  i» 
able,  and  thus  prevent  the  principal  defendant  not  only  from  making 
money  by  breaking  its  agreement,  but  from  inflicting  a  double  wrong 
upon  the  plaintiff  by  depriving  it  of  the  right  to  sell,  and  conferring 
that  right  on  a  business  competitor."  For  further  instances  of  such 
contracts,  see  Eoyer  Wheel  Co.  v.  Miller,  20  Ky,  Law  Eep.  1831,  50 
S.   W.   62.* 

98  National  Phonograph  Co.  v.  Schlegel,  117  Fed.  624. 


620  INJUNCTION;  BREACH  OF  CONTRACTS.  S  296 

§  296.  Contracts  Conferring  an  Exclnsive  Right. — Where 
a  contract  confers  on  one  party  an  exclusive  right  or 
privilege,  a  breach  of  the  contract  through  conduct  of 
the  other  party  inconsistent  with  the  exclusiveness  of 
the  right  or  privilege  may  be  enjoined,  subject  to  the 
general  principle  as  to  the  inadequacy  of  the  legal  rem- 
edy for  the  breach.  It  is  immaterial  that  such  incon- 
sistent conduct  is  not  prohibited  by  the  express  terms 
of  the  contract.  Contracts  giving  to  one  party  an  ex- 
clusive right  to  the  personal  services  of  another  are  a 
common  species  of  agreements  of  this  general  class,  and 
have  already  been  discussed.^^  Contracts  giving  the 
plaintiff  the  exclusive  right  to  buy  articles  manufac- 
tured or  produced  by  the  defendant,  or  constituting 
the  plaintiff  the  sole  agent  for  their  sale,  have  fre- 
quently been  enforced  by  enjoining  the  sale  of  the  ar- 
ticles by  the  defendant  to  third  parties,  if  the  article 
is  of  such  a  character  that  an  agreement  for  its  sale 
would  be  specifically   enforced. ^'^'^     Other   instances  of 

69  See  ante,  §§  288-291.  For  injunction  to  protect  exclusive  fran- 
chises, see  chapter  XXVII. 

100  Dietrichsen  v.  Cabbum,  2  Phill.  Ch.  52,  where  defendant,  hav- 
ing agreed  to  employ  plaintiff  as  agent  and  supply  him  with  oil  at 
forty  per  cent  discount,  and  not  to  allow  more  than  twenty-five  per 
cent  discount  to  others,  was  enjoined  from  committing  a  breach  of 
the  latter  stipulation;  Donnell  v.  Bennett,  L.  R.  22  Ch,  D,  835,  injunc- 
tion against  breach  of  express  negative  covenant  not  to  sell  fish  to 
manufacturers  other  than  the  plaintiff;  Singer  Sewing  Machine  Co. 
V.  Union  Button  Hole  Co.,  1  Holmes,  253,  Fed.  Cas.  No.  12,904,  con- 
tract making  plaintiff  sole  agent  for  a  patented  article;  Lowenbein 
v.  Fuldner,  2  Misc.  Rep.  176,  21  N.  Y.  Supp.  615,  contract  to  manu- 
facture for  plaintiff,  and  no  one  else,  furniture  of  a  special  and 
unique  design  furnished  by  plaintiff;  Valley  Iron  Works  Mfg.  Co. 
V.  Goodwick,  103  Wis.  436,  78  N.  W.  1096,  specific  performance  of 
agreement  to  transfer  patent,  and  injunction  against  disposing  of 
it  to  other  parties;  Manhattan  Mfg.  etc.  Co.  v.  New  Jersey  etc.  Co., 
23  N.  J.  Eq.  161,  contract  by  stock-yards  company  giving  complain- 
ant, a  fertilizer  company,  sole  right  to  remove  offal  from  its  prem- 
ises enforced  by  injunction  against  its  lessee  with  notice;  injimo* 
Equitable  Remedies,  Vol.  I — 34 


§  297  EQUITABLE  REMEDIES.  530^ 

exclusive  rights  protected  by  injunction  are  enumer- 
ated in  the  note.^*^^ 

§  297.  Miscellaneous  Agreements,  Expressly  Negative. — 
The  following  contracts,  enforced  by  injunction,  are 
given  as  illustrations  merely :  An  agreement  not  to  ring 

tion  to  avoid  multiplicity  of  suits,  and  because  of  impossibility  of 
computing  damages;  Myers  v.  Steele  Mach.  Co.  (N.  J.  Eq.),  57  Atl. 
1080.  On  the  other  hand,  a  breach  of  a  contract  to  sell  to  plaintiflE 
all  the  coal  defendants  should  get  from  a  certain  mine  will  not  be 
enjoined,  since  coal  is  not  an  article  a  contract  for  the  sale  of  which 
will  be  specifically  enforced:  Fothergill  v.  Rowland,  L.  R,  17  Eq.  132. 
So,  in  case  of  a  contract  to  sell  a  certain  amount  of  wood  to  the 
plaintiff  every  year  for  a  period  of  years,  and  not  to  sell  to  anyone  else 
BO  as  to  prevent  fulfillment  of  the  contract,  injunction  was  refused: 
St.  Regis  Paper  Co.  v.  Santa  Clara  Lumber  Co.,  55  App.  Div.  225,  67 
N.  Y.  Supp.  149,  reversing  31  Misc.  Rep.  695,  66  N.  Y,  Supp.  59. 

101  Exclusive  right  of  removing  garbage,  or  dead  animals,  under 
contract  with  a  city:  National  Fertilizer  Co,  v.  Lambert,  48  Fed.  458; 
Sanitary  Reduction  Works  of  San  Francisco  v.  California  Reduction 
Co.,  94  Fed.  693.  Contract  allowing  plaintiff  exclusive  right  for  one 
year  to  display  an  advertising  curtain  in  front  of  the  stage  of  de- 
fendant's theater:  Beer  v,  Canary,  2  App.  Div.  518,  38  N.  Y.  Supp. 
23  (defendant  insolvent;  plaintiff  had  a  number  of  advertising  con- 
tracts; and  damages  could  not  be  ascertained).  A  contract  to  pur- 
chase from  plaintiff  exclusively  all  of  a  certain  article  which  defend- 
ant should  need:  Petrolia  Mfg.  Co.  v.  Jenkins,  29  App.  Div.  403,  51 
N.  Y.  Supp.  1028  (injunction  to  avoid  multiplicity  of  suits  for 
breaches  of  the  contract).  But  in  James  T.  Hair  Co.  v.  Huekins,  56 
Fed.  366,  5  C.  C.  A.  522,  12  U.  S.  App.  359,  it  was  held,  without  dis- 
cussion, that  for  breach  of  defendant's  contract  to  use  plaintiff's  hotel 
register  in  his  business,  and  no  others,  the  remedy  at  law  was  ade- 
quate. 

In  the  recent  case  of  Manchester  Ship  Canal  Co.  v.  Manchester 
R.  Co.,  [1901]  2  Ch.  37,  affirming  [1900]  2  Ch.  352,  the  contract 
was,  to  give  the  plaintiff  the  "first  refusal"  of  certain  land.  It 
was  held  that  a  negative  was  involved,  and  an  injunction  was 
granted  against  the  owner  and  an  intending  purchaser.  In  Metro- 
politan El.  Supply  Co.,  Ltd.,  v.  Gender,  [1901]  2  Ch.  799,  there  was 
a  contract  by  a  consumer  to  take  the  whole  of  the  electric  energy 
required  for  certain  premises,  from  the  company;  held,  in  substance, 
an  agreement  not  to  take  such  energy  from  another  source,  and  in- 
junction awarded. 


531  INJUNCTION;  BREACH  OF  CONTRACTS.  S  29T 

a  certain  bell;^"^  agreements  not  to  disclose  trade  se- 
crets ;^*'^  by  subscribers  to  news  associations,  not  to  pub- 
lish the  information  received  or  furnish  it  to  others;*"* 
by  the  vendor  of  the  plates  of  a  book,  not  to  publish 
the  book  except  under  certain  conditions;*"'  ante-nup- 
tial contract  by  woman,  not  to  apply  for  dower  ;*°*  mu- 
tual covenants  of  persons  owning  two  sides  of  a  build- 
ing that  no  change  shall  be  made  in  the  front  without 

mutual  consent.*®^  Other  illustrations  are  given  in  the 
note.*°8 

102  Martin  v.  Nutkin,  2  P.  Wms.  266,  the  leading  case.  Ringing 
the  bell  was  an  injury  to  one  of  the  complainants,  who  was  an  in- 
valid. 

103  Peabody  v.  Norfolk,  98  Mass.  452,  96  Dec.  664;  S.  Jarvia 
Adams  Co.  v.  Knapp,  121  Fed.  34;  Murjahn  v.  Hall,  119  Fed.  186; 
Stone  V.  Goss,  65  N.  J.  Eq.  756,  55  Atl.  736;  Fralich  v.  Despar,  165 
Pa.  St.  24,  30  Atl.  521;  Salomon  v.  Hertz,  40  N.  J.  Eq.  400,  2  Atl. 
379;  National  Gum  &  M.  Co,  v.  Braendly,  27  App.  Div.  219,  51  N. 
Y.  Supp.  93.     See  ante,  §  268. 

104  Gold  &  Stock  Tel.  Co.  v.  Todd,  17  Hun  (N.  Y.),  548;  Board 
of  Trade  v.  Christie  Grain  &  Stock  Co.  (U.  S.),  25  Sup.  Ct.  637 
(against  divulging  board  of  trade  quotations,  although  they  may 
concern  illegal  acts).  See,  also,  F.  W.  Dodge  Co.  v.  Construction 
Information  Co.,  183  Mass.  62,  97  Am.  St,  Rep.  412,  66  N.  E.  204,  60 
L.  R.  A.  810  (agreement  apparently  not  expressly  negative). 

105  Standard  Am.  Pub.  Co,  v,  Methodist  Book  Concern,  33  App. 
Div,  409,  54  N,  Y.  Supp.  55. 

106  Cummings  v.  Cummings  (R,  I.),  57  Atl.  302. 

107  First  Nat.  Bank  v.  Portsmouth  Sav,  Bank,  71  N.  H,  547,  5S 
Atl,   1017. 

108  Thus,  one  who  procures  a  retailer  to  violate  an  agreement  not 
to  sell  goods  of  a  manufacturer  at  less  than  a  certain  price,  may 
himself  be  enjoined  from  so  selling:  Garst  v.  Charles  (Mass.),  72  N. 
E,  839.  See,  also,  for  an  application  of  the  same  principle.  Exchange 
Tel.  Co.,  Ltd.,  V.  Central  News,  Ltd.,  [1897]  2  Ch.  48.  In  general, 
see  Dickenson  v.  Grand  Junction  Canal  Co.,  15  Beav,  260,  2  Keener 'a 
Cas.  on  Eq,  Jur.  312  (injunction  against  diverting  water).  In  the 
following  cases  injunctions  were  issued  to  restrain  a  railroad  from 
running  trains  past  a  station  without  stopping,  in  violation  of  con- 
tract: Rigby  V.  Great  West.  Ry.,  2  Phill.  Ch.  44;  Hood  v.  North 
East  Ry.,  L.  R.  8  Eq.  666,  5  Ch.  525;  Phillips  v.  Great  Western  Ey. 
Co.,  L.  R.  7  Ch.  409. 


§  298  EQUITABLE  KEMEDIES.  632 

§  298.  Miscellaneous  Agreements,  not  Expressly  Ne^tive. 
Threatened  breaches  of  the  contracts  of  gas  and  water 
companies,  by  shutting  off  the  supply  of  gas  or  water 
from  the  consumer,  have  frequently  been  restrained  by 
injunction.  It  is  plain  that  in  such  cases  the  damages 
which  will  be  suffered  by  the  consumer  may  either  be 
irreparable,  or  not  readily  capable  of  ascertainment, 
and  that  the  recovery  of  damages  may  involve  a  multi- 
plicity of  actions  at  law.  Moreover,  there  is  usually 
no  other  source  of  supply  of  which  the  plaintiff  may 
avail  himself.^"*  It  has  also  been  held  that  a  munici- 
pality may  enjoin  a  gas  company  from  charging  rates 

109  Gallagher  v.  Equitable  Gaslight  Co.,  141  Gal.  699,  75  Pac.  329; 
Edwards  v.  Milledgeville  Water  Co.,  116  Ga.  201,  42  S.  E.  417;  Xenia 
Eeal  Est.  Co.  v.  Macy,  147  Ind.  568,  47  N.  E.  147;  Simpson  v.  Pitts- 
burgh Plate  Glass  Co.,  28  Ind.  App.  343,  62  N.  E.  753;  Graves  v. 
Key  City  Gas  Co.,  83  Iowa,  714,  50  N.  W.  283;  Wood  v.  City  of  Au- 
burn, 87  Me.  287,  32  Atl.  906,  29  L.  B.  A.  376;  Horsky  v.  Helena  Cons. 
Water  Co.,  13  Mont.  229,  33  Pac.  689  (breach  would  ruin  plaintiff 'a 
business);  Sickles  v.  Manhattan  Gas-Light  Co.,  64  How.  Pr.  33; 
Whitenian  v.  Fayette  Fuel  Gas  Co.,  139  Pa.  St.  492,  20  Atl.  1062 
(mandatory  preliminary  injunction) ;  School  District  of  Borough  of 
Sewickley  v.  Ohio  Val.  Gas  Co.,  154  Pa.  St.  539,  25  Atl,  868.  Contra, 
in  Loy  v.  Madison  etc.  Gas  Co.,  156  Ind.  332,  58  N.  E.  844,  plaintiffs 
■were  held  not  entitled  to  enjoin  a  gas  company  from  shutting  off 
their  supply  of  gas  on  the  ground  of  irreparable  injury,  as  there  was 
no  evidence  that  they  had  no  other  means  of  heating  and  lighting 
their  houses.  In  Bienville  W.  S.  Co.  v.  Mobile,  112  Ala.  260,  57 
Am.  St.  Eep.  28,  20  South.  742,  33  L.  E.  A.  59,  the  injunction  was 
granted  against  shutting  off  the  water  supply  of  a  city  on  the  ground 
of  a  breach  of  public  duty,  in  the  nature  of  a  public  nuisance. 

A  telcplione  company  may  be  enjoined  from  removing  its  instru- 
ment from  plaintiff's  residence:  Anderson  v.  Mt.  Sterling  Telephone 
Co.   (Ky.),  86  a  W.   1119. 

Of  course  one  who  refuses  to  pay  reasonable  rates  demanded  is 
not  entitled  to  an  injunction:  Mulrooney  v.  Obear,  171  Mo.  613  71 
8.  W.  1019.  It  is  held  that  a  purchaser  of  water  rights  from  a  water 
company  may  enjoin  the  company  from  destroying  his  headgatea 
and  ditches:  Hargrave  v.  Hall,  3  Ariz.  252,  73  Pac.  400. 


533  INJUNCTION;  BREACH  OF  CONTRACTS.  §  298 

to  individuals  in  excess  of  the  maximum  fixed,  in  viola- 
tion of  contract  with  the  city.^^^ 

Further  illustrations  of  the  use  of  injunction  to  re- 
strain the  breach  of  contracts,  although  such  breach 
was  not  forbidden  by  an  express  negative,  are  found  in 
the  following  cases;  Contract  by  a  railroad  to  maintain 
and  keep  open  a  passageway  for  stock  under  its  road;^" 
lease  of  a  railroad  enforced  against  the  lessee  by  an  in- 
junction against  abandoning  the  operation  of  the 
road;^^^  many  other  contracts  relating  to  the  operation 
of  railroads  ;^^^  contract  by  a  street  railroad  with  a 
city  to  change  its  tracks  from  the  side  to  the  center  of 
the  street.^  ^*  A  publisher  agreed  with  an  author  to  pub- 
lish his  book  and  pay  him  a  royalty;  pending  suit  for 
accounting  against  the  publisher,  who  was  insolvent 
and  unable  to  pay,  the  defendant  was  restrained  from 
publishing  the  book,  notwithstanding  that  the  author's 
interest  therein  was  not  protected  by  copyright.^  ^^ 
Defendant,  a  novelist,  agreed  to  permit  plaintiff,  a 
playwright,  to  dramatize  a  novel  written  by  the  former; 

no  Muncie  Nat.  Gas  Co.  ▼.  City  of  Muncie,  160  Ind.  97,  66  N.  E. 
436. 

111  Eock  Island  &  P.  R.  Co,  v.  Dimick,  144  111.  628,  32  N.  E. 
291,  19  L.  R.  A.  105;  Moore  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  7  Kan. 
App.  242,  53  Pac.  775. 

112  Southern  R.  Co.  v.  Franklin  &  P.  R.  Co.,  96  Va.  693,  32  S.  E. 
485,  44  L.  R.  A.  297.  Suit  at  law  would  not  afford  an  adequate  rem- 
edy, since  the  damages  to  the  lessor  from  loss  of  traffic,  decay  of 
buildings  and  structures,  and  possible  forfeiture  of  its  franchises 
could  not  be  estimated,  or  if  such  injuries  were  reparable  in  damages, 
it  would  require  a  multiplicity  of  actions  for  the  daily  breach  of  tha 
agreement. 

113  See  post,  Vol.  n,  chapters  on  Specific  Performance:  Brooklyn 
El.  R.  Co.  V.  Brooklyn,  B.  &  W.  E.  R.  Co.,  23  App.  Div.  29,  48  N.  Y. 
Supp.  665. 

114  City  of  Gloversville  v.  Johnstown,  G,  &  H.  Horse  E.  Co.,  66 
Hun,  627,  21  N.  Y.  Supp.  146. 

115  Saltus  V.  Belford  Co.,  133  N.  Y.  499,  31  N.  E.  618,  affirming  64 
Hun,  632,  18  N.  Y.  Supp.  619. 


§  299  EQUITABLE  REMEDIES.  534 

the  novelist  having  subsequently  authorized  a  drama- 
tization of  the  novel  by  the  other  defendants,  its  per- 
formance on  the  stage  was  enjoined,  although  the  court 
could  not  have  enforced  a  performance  of  the  contract 
as  an  entirety  by  compelling  the  defendant  to  put  plain- 
tiff's dramatization  on  the  stage.^^®  An  agreement 
among  the  merchants  of  a  town  to  close  their  stores 
at  a  certain  hour  in  the  evening  was  repudiated  by  one 
of  the  parties ;  injunction  was  held  to  be  the  proper  rem- 
edy, to  avoid  a  multiplicity  of  actions,  by  numerous 
plaintiffs,  for  recurring  breaches  of  the  contraet^^^ 
Where  the  proprietor  of  a  water-power  leases  the  use 
of  a  specific  quantity  of  water,  and  the  lessee  persist- 
ently uses  water  in  excess  of  the  amount  covered  by  the 
lease,  and  threatens  to  continue  in  so  doing,  and  where 
tlie  extent  of  such  use  is  contingent,  and  its  value  diffi- 
cult of  ascertainment  and  of  doubtful  estimation,  such 
proprietor  may  enjoin  the  lessee  from  using  such  ex- 
cess, without  alleging  or  proving  that  such  excess  is 
essential  to  the  operation  of  other  mills,  or  is  diverted 
therefrom.^  ^^ 

§  299.  Adequate  Remedy  at  Law.— In  all  these  cases,  if 
the  breach  of  the  contract,  committed  or  threatened, 
can  be  adequately  redressed  by  the  recovery  of  dam- 

116  House  V.  Clemens,  24  Abb,  N.  C.  381,  9  N.  Y.  Supp.  484, 

117  Stovall  V.  McCutchen,  107  Ky,  577,  92  Am.  St.  Eep.  373,  54 
a  W.  969,  47  L,  E.  A,  287. 

118  Lawson  v.  Menasha  Wooden-Ware  Co.,  59  Wis.  393  48  Am. 
Eep.  528,  18  N,  W.  440.  The  decision  rests  on  the  ground  not  only 
of  the  impossibility  of  proving  the  amount  of  the  excess  used,  but 
also  of  avoiding  a  multiplicity  of  suits  for  recurring  breaches  of  the 
contract.  Compare  Saltsburg  Gas  Co.  v.  Borough  of  Saltsburg,  138 
Pa.  St.  250,  20  Atl.  844,  10  L.  R.  A.  193,  where  it  seems  to  be  hold 
that  a  gas  company  cannot  enjoin  a  town  from  using  more  gas  than  it 
is  entitled  to  under  its  contract,  since  the  company  may  sue  at  law  for 
the  e:xces3. 


536  INJUNCTION;  BREACH  OF  CONTRACTS.  §  300 

ages  in  a  single  suit  at  law,  injunction  will  not  issue 
to  restrain  the  breach,^ ^^  Thus  an  injunction  has  been 
refused  against  retaining  money  belonging  to  the  plain- 
tiff under  the  contract  ;^^'^  against  a  turnpike  company 
collecting  toll  from  one  who  claimed  exemption  from 
payment  by  virtue  of  an  agreement  with  the  com- 
pany ;^^^  against  a  board  of  education  substituting  an- 
other text-book  for  use  in  schools  in  violation  of  con- 
tract with  publishers. ^^2  Likewise,  an  injunction  to 
restrain  breach  of  an  agreement  not  to  use  any  other 
trading  stamp  than  plaintiffV^^  has  been  denied.  It 
has  been  held  that  a  toll-road  company  has  an  adequate 
remedy  at  law  for  unnecessary  encroachments  by  an 
electric  railway  company  which  has  a  contract  author- 
izing necessary  encroachments.^^* 

§  300.  Effect  of  Provisions  for  Penalties  and  Liquidated  Dam- 
ages.— It  frequently  happens  in  cases  of  negative  cove- 
nants that  stipulations  for  penalties  or  liquidated  dam- 
ages are  inserted.  The  question  which  arises  in  these 
cases  is  whether  such  provisions  furnish  an  adequate 
remedy  at  law  so  as  to  oust  equity  of  its  jurisdiction  to 

119  See  cases  passim  in  preceding  sections;  also  Gaslight  etc. 
Co.  of  New  Albany  v.  City  of  New  Albany,  139  Ind,  660,  39  N.  E. 
462;  Glassbrenner  v.  Groulik,  110  Wis.  402,  85  N.  W.  962;  Wa- 
baska  Electric  Co.  v.  City  of  Wymore,  60  Neb.  199,  82  N.  W.  626; 
World's  Columbian  Exposition  v.  United  States,  56  Fed.  654,  6  C.  C. 
A.  38,  18  U.  S.  App.  42;  Gallagher  v.  Fayette  Co.  E.  R.,  88  Pa.  St.  102. 

120  Chicago  &  A.  R.  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.,  24  Fed. 
516. 

121  Kellett  V.  Clayton,  99  Cal.  210,  33  Pac.  885.  The  court  were 
of  the  opinion  that  a  multiplicity  of  actions  by  plaintiff  to  recover 
the  tolls  paid  was  not  probable,  but  that  one  such  action  would  end 
the  dispute. 

122  Attorney-General  v.  Board  of  Education,  133  Mich.  681,  95  N. 
W.  746. 

12C   Sperry  &  Hutchinson  Co.  v.  Vine   (N.  J.  Eq.),  57  Atil.  1036. 
124  Detroit   &  B.  Plank  Road  Co.   v.  Oakland  Ry.  Co.,  131  Mich. 
663,  92  N.  W.  34fl. 


(  300  EQUITABLE  REMEDIES.  536 

grant  an  injunction.  It  seems  to  be  generally  con- 
ceded that  if  the  stipulation  is  to  be  construed  as  a 
penalty,  equity  does  not  lose  its  jurisdiction.^ ^5  ^  pg^. 
alty  is  merely  a  security  for  the  performance  of  the  con- 
tract, and  is  not  the  price  for  doing  what  a  man  has  ex- 
pressly agreed  not  to  do.  "In  determining  the  ques- 
tion whether  in  a  given  case  the  sum  named  is  a  pen- 
alty or  liquidated  damages,  courts  give  but  little 
weight  to  the  mere  form  of  words,  but  gather  the  in- 
tent from  the  general  scope  and  purport  of  the  con- 
tract,"^^'  Where  the  stipulation  is  construed  as  one 
for  liquidated  damages,  the  courts  are  not  agreed  as 
to  the  remedy.  The  better  rule  seems  to  be  that  it  is 
a  question  of  intention.  "It  is,  of  course,  competent 
for  parties  to  a  covenant  to  agree  that  a  fixed  sum  shall 
be  paid  in  case  of  a  breach  by  the  party  in  default,  and 
that  this  should  be  the  exclusive  remedy.  The  inten- 
tion in  that  case  would  be  manifest  that  the  payment 
of  the  penalty  should  be  the  price  of  non-performance. 
But  the  taking  of  a  bond  in  connection  with  a  covenant 
does  not  exclude  the  jurisdiction  of  equity  in  a  case 
otherwise  cognizable  therein,  and  the  fact  that  the 
damages  in  the  bond  are  liquidated  does  not  change  the 
rule.  It  is  a  question  of  intention,  to  be  deduced  from 
the  whole  instrument  and  the  circumstances;  and  if  it 
appear  that  the  performance  of  the  covenant  was  in- 
tended, and  not  merely  the  payment  of  damages  in  case 
of  a  breach,  the  covenant    will    be    enforced."^^''^     All 

125  Dills  V.  Doebler,  62  Conn.  366,  36  Am.  St.  Rep.  345,  26  Atl. 
398,  20  L.  R.  A.  432;  Wilkinson  v.  Colley,  164  Pa.  St.  35,  30  Atl.  286, 
26  L.  R.  A.  114;  Ropes  v.  Upton,  125  Mass.  258;  Robinson  v.  Heuer, 
67  L.  J.  Ch.  644,  [1898]  2  Ch.  451,  79  L.  T.,  N.  S.,  281,  47  Week.  Kep. 
34.     See,  also,  1  Pom.  Eq.  Jur.,  §  446. 

126  Dills  V.  Doebler,  62  Conn.  366,  36  Am.  St.  Rep.  345,  26  Atl.  398, 
20  L.  R.  A.  432. 

127  Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473,  60  Am.  Rep.  469, 
13  N.  E.  419;  Zimmerman  v.  Gerzog,  13  App.  Div.  210,  43  N.  Y.  Supp. 


537  INJUNCTION;  BREACH  OF  CONTRACTS.  S  300 

that  is  settled  by  the  insertion  of  an  agreement  for  liqui- 
dated damages  is  that  if  au  action  is  brought  for  dam- 
ages, the  recovery  shall  be  for  the  amount  named, 
neither  more  nor  less.^^*  On  the  other  hand,  there  is 
a  line  of  cases  holding  that  where  liquidated  damages 
are  stipulated  for,  injunctive  relief  must  be  denied,  the 
argument  being  that  the  ground  of  the  jurisdiction  is 
the  inadequacy  of  the  legal  remedy.  When  parties 
have  stipulated  as  to  the  amount  of  damage,  the  diffi- 
culty is  removed.  Accordingly,  the  legal  remedy  is 
held  to  be  exclusive.^** 

339;  A.  L.  &  J.  J.  Reynolds  Co.  v.  Dreyer,  12  Misc.  Rep.  368,  33  N. 
Y.  Supp.  649;  Ropes  v.  Upton,  125  Mass.  258;  McCurry  v,  Gibson, 
108  Ala.  451,  54  Am.  St.  Rep.  177,  18  South.  806.  See,  also,  HowarJ 
V.  Woodward,  10  Jur.,  N.  S.,  1123.  Where  it  appears  that  perform- 
ance and  payment  are  made  alternative,  relief  will  be  refused: 
Sainter  v.  Ferguson,  1  Macn.  &  G.  286. 

128  McCurry  v.  Gibson,  108  Ala.  451,  54  Am.  St.  Rep.  177,  18  South. 
606. 

129  Bills  V.  Doebler,  62  Conn.  366,  36  Am,  St.  Rep.  345,  26  Atl.  398, 
20  L.  R.  A.  432;  O'Neal  v.  Hines,  145  Ind.  32,  43  N.  E.  946j  Martin 
V.  Murphy,  129  Ind.  464,  28  N.  E.  1118;  Hahn  v.  Concordia  Soc,  42 
Md.  460.     Compare  1  Pom.  Eq.  Jnr.,  3d  ed.,  §  447,  and  note  (a). 


i§  301,302  EQUITABLE  EEMEDIES.  538 


CHAPTER  XIV. 


§§  301-304. 

§  302. 

§  303. 

§  304. 

§  305. 

§  306. 

§  307. 

S  308. 

INJUNCTIONS  AGAINST  CORPORATIONS  AND  THEIE 
OFFICERS. 

ANALYSIS. 

Ultra  vires  acts — Questions  stated. 

Suits  by  the  attorney-generaL 

Suits  by  stockholders. 

Suits  by  third  parties. 

Suits   by    stockholders    against     directors     for     wrongful 

dealing  with  corporate  property. 
Other  suits  by  stockholders. 

No  injunction  to  determine  title  to  corporate  office. 
Existence  of  a  corporation  cannot  be  challenged  by  in- 
junction— Injunction   in   connection   with   receivership. 

§  301.  Ultra  Vires  Acts — Questions  Stated. — The  princi- 
ples governing  the  jurisdiction  of  equity  to  restrain 
ultra  vires  acts  of  private  corporations  vary  with  the 
character  of  the  parties  plaintiff.  It  is  obvious  that  ac- 
tions for  such  injunctions  may  be  brought  by  three  dif- 
ferent classes  of  plaintiffs,  viz.:  (1)  the  attorney-gen- 
eral on  behalf  of  the  state;  (2)  a  stockholder,  and  (3) 
a  third  party,  having  no  connection  with  the  corpora- 
tion. In  each  of  these  cases  the  right  to  an  injunction 
rests  upon  a  theory  of  its  own ;  therefore,  each  must  be 
considered  separately. 

§  302.  Suits  by  the  Attorney-General. — It  is  now  well 
settled  that  where  a  corporate  excess  of  power  or  mis- 
use of  franchise  "tends  to  the  public  injury  or  to  de- 
feat public  policy,"  it  may  be  restrained  at  the  suit  of 
the  attorney-general.^     This  jurisdiction  is  somewhat 

1  Stockton  V.  Central  E.  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964,  17  L.  E. 
A.  97;  State   v.   American    etc.    Assn.,   64  Minn.   349,   67   N.   W.   Ij 


639  INJUNCTION;  CORPOEATIONS.  §  SOil 

similar  to  that  of  equity  to  restrain  a  public  nuisance.^ 
The  question  which  arises  in  many  of  the  cases,  there- 
fore, is  simply  whether  the  acts  tend  to  the  public  in- 
jury. Thus,  where  a  railroad  company  violates  a  penal 
statute  by  charging  excessive  fares,  the  injury  to  the 
public  is  such  as  will  warrant  an  injunction.^  Like- 
wise, an  injunction  is  proper  when  the  abuse  tends  to 
foster  a  monopoly,  as  where,  in  violation  of  the  consti- 
tution or  statutes  of  a  state,  one  railroad  is  about  to 
purchase  a  parallel  line,^  or,  under  circumstances  tend- 
ing to  stifle  competition,  is  about  to  lease  its  lines  to,^ 
or  buy  shares  in,^  another  railroad.  The  reason  is  well 
laid  down  in  a  leading  English  case,  as  follows  '^  "Now, 
why  has  the  rule  been  established,  that  railway  com- 
panies must  not  carry  on  any  business  other  than  that 
for  which  they  were  constituted?  It  is  because  these 
companies,  being  armed  with  the  power  of  raising  large 
sums  of  money,  if  they  were  allowed  to  apply  their 
funds  to  purposes  other  than  those  for  which  they  were 
constituted,  might  acquire  such  a  preponderating  in- 
fluence and  command  over  some  particular  branch  of 
trade  or  commerce,  as  would  enable  them  to  drive  the 
ordinary  private  traders  out  of  the  field,  and  create 

Louisville  &  N.  R.  Co.  v.  Com.,  97  Ky.  675,  31  S.  W.  476;  Attorney- 
General  V.  Chicago  etc.  E.  E.  Companies,  35  Wis.  530;  Attorney-Gen- 
eral V.  Great  North.  Ey.  Co.,  1  Drew  &  S.  154;  Trust  Co.  of  Ga.  ▼. 
State,  109  Ga.  736,  35  S.  E.  323,  48  L.  E.  A.  520. 

2  Attorney-General  v.  Chicago  etc.  E.  E.  Companies,  35  "Wis.  530. 
This  case  contains  a  good  statement  of  the  principles  and  an  ex- 
haustive citation  of  authority. 

3  Attorney-General  v.  Chicago  etc.  E.  E.  Companies,  35  Wis.  530. 

4  Louisville  &  N.  E.  Co.  v.  Commonwealth,  97  Ky.  675,  31  S.  W. 
476. 

5  Stockton  V.  Central  E.  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964,  17  L.  E. 
A.  97. 

«  Trust  Co.  of  Ga.  v.  State,  109  Ga.  736,  35  S.  E.  323,  48  L.  E.  A. 
P20. 

^  Attorney-General  v.  Great  North.  "By.,  1  Drew  &  S.  154. 


S  302  EQUITABLE  KEMEDIES.  WO 

in  their  own  favor  a  practical  monopoly,  whereby  the 
interests  of  the  public  would  be  most  seriously  injured." 
There  is  a  tendency  in  some  jurisdictions  to  extend 
the  remedy,  and  to  allow  the  attorney-general  an  in- 
junction against  every  abuse  of  corporate  power  by  a 
quasi  public  corporation.®  The  argument  is  that  every 
excess  of  corporate  power  is  a  violation  of  the  charter 
contract  with  the  government,  and  is  therefore  an  in- 
vasion of  public  rights  which  equity  should  protect. 
Thus,  it  has  been  held  that  a  railroad  company  will  be 
enjoined  at  the  suit  of  the  attorney-general  from  unlaw- 
fully laying  its  tracks  in  a  highway,  even  though  no 
public  injury  results.®  This  expansion  of  the  rule, 
however,  has  not  been  applied  to  purely  private  busi- 
ness corporations,^**  the  theory  being  that  as  equity 
protects  only  substantial  rights,  the  jurisdiction  must 
be  confined  to  enjoining  acts  which  tend  to  substantial 
public  injury. 

The  adequacy  of  the  legal  remedy  by  quo  warranto  is 
no  defense  to  an  action  by  the  attorney-general.  In 
many  cases  he  is  allowed  a  discretion  to  choose  either 
remedy.^  ^  It  is  often  better  for  the  public  interest  to 
restrain  such  violations  than  to  enforce  a  forfeiture, 
and  this  is  especially  true  in  regard  to  quasi  public  cor- 
porations.^^    Moreover,  as  stated    in  a    quo   warranto 

8  Attorney-General  v.  London  &  N.  W.  K.  Co.,  [1900]  1  Q.  B.  78; 
Attorney-General  v.  Birmingham  &  O.  T.  Co.,  3  Macn.  &  G.  453,  461. 

9  Attorney-General  v.  Greenville  &  H.  Ey.  Co.,  59  N.  J.  Eq.  372, 
46  Atl.  638;  Grey  v.  Greenville  &  H.  Ry.  Co.,  60  N.  J.  Eq.  153,  46  Atl. 
636. 

10  Attorney-General  v.  Tudor  Ice  Co.,  104  Mass.  239,  6  Am.  Eep. 
227;  Attorney-General  v.  Bank  of  Niagara,  Hopk.  Ch.  354;  Attorney- 
General  V.  Utica  Ins.  Co.,  2  Johns.  Ch.  371. 

11  Stockton  V.  Central  E.  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964,  974,  17 
L.  E.  A.  97. 

12  Louisville  &  N.  E.  Co.  v.  Commonwealth,  97  Ky.  675,  31  8.  W. 
476. 


541  INJUNCTION;  CORPORATIONS.  §  303 

case,  "acts  ultra  vires  may  justify  interference  on  the 
part  of  the  state  by  injunction  to  prohibit  a  continu- 
ance of  the  excess  of  powers  which  would  not  be  a  suffi- 
cient ground  for  a  forfeiture  in  proceedings  in  quo  war- 
ranto." ^^ 

§  303.  Suits  by  Stockholders. — As  a  general  rule,  it 
may  be  stated  that  a  stockholder  may  obtain  an  injunc- 
tion against  ultra  vires  acts.  This  is  based  on  the  prin- 
ciple that  there  is  a  contract  relation  between  the  stock- 
holders and  the  corporation  w^hich  is  a  subject  of  equi- 
table protection.  "The  directors  are  their  trustees  to 
employ  the  joint  capital  in  the  management,  ....  to 
the  end  that  from  the  investment  the  stockholders  have 
chosen  they  may  reap  the  contemplated  profits.  And 
this  is  the  agreement  of  the  stockholders  among  them- 
selves. They  each  contract  with  the  other  that  their 
money  shall  be  so  employed.  What  the  majority  de- 
termine within  the  scope  of  this  mutual  contract,  they 
agree  to  abide  by,  but  there  their  mutual  contract  ends, 
and  no  majority,  however  large,  has  a  right  to  divert 
one  cent  of  the  joint  capital  to  any  purpose  not  con- 
sistent with,  and  growing  out  of  this  original  funda- 
mental joint  intention."^*  Thus,  a  minority  stock- 
holder is  entitled  to  an  injunction  to  restrain  a  corpo- 
ration from  selling,,  leasing,  or  transferring  all  of  its 
property,^ ^  or  from  consolidating,  ultra  vires ^  with  an- 

13  State  V.  Minnesota  Thresher  Mfg.  Co.,  40  Minn,  213,  41  N,  W. 
1020,  3  L.  E.  A.  510. 

14  Kean  v.  Johnson,  9  N.  J.  Eq.  401,  409.  See,  also,  on  the  sub- 
ject of  this  section,  3  Pom.  Eq.  Jur.,  §  1093. 

15  Kean  v.  Johnson,  9  N.  J.  Eq.  401;  Abbott  v.  American  Hard 
[lubber  Co.,  33  Barb.  578;  Small  v.  Minneapolis  Electro-Matrix  Co., 
45  Minn.  264,  47  N.  W.  797;  Black  v.  Delaware  &  R.  C.  Co.,  24  N.  J. 
Eq.  455;  Forrester  v.  Boston  &  M.  Cons.  C.  &  S.  M.  Co.,  21  Mont. 
C.44,  5o  Pac.  229,  353;  New  Albany  Waterworks  v.  Louisville  Bank- 
ing Co.,  122  Fed.  776. 


i  303  EQUITABLE  REMEDIES.  542 

other  corporation/®  or  from  issuing  paper  to  circulate 
as  money/ '^  or  from  guaranteeing  bonds  of  another  cor- 
poration.^* Likewise,  such  a  stockholder  may  obtain 
an  injunction  to  restrain  the  appropriation  of  corporate 
funds  for  any  object  not  warranted  by  the  charter/^  or 
to  prevent  the  fraudulent  payment  of  private  debts 
with  corporate  funds.^'*  Upon  the  same  principle,  he 
is  entitled  to  an  injunction  to  restrain  the  ultra  vires 
purchase  of  land/^  to  restrain  such  a  change  in  the 
certificate  of  incorporation  as  will  reduce  the  dividend 
on  preferred  shares  j^^  and  to  restrain  an  increase  of 
capital  stock  to  be  given  for  property  worth  less  than 
the  face  value  of  the  stock.^^  Likewise,  a  stockholder 
may  enjoin  a  bank  from  discounting  notes  at  usurious 
rates,  in  violation  of  its  charter.^^  The  fact  that  such 
contracts  may  be  beneficial  both  to  the  corporation  and 
to  the  stockholder  is  no  ground  for  refusing  the  relief, 
for  the  stockholder  has  a  contract  right  which  he  is  en- 

16  Botts  V.  Simpsonville  &  B.  C.  Turnpike  Road  Co.,  88  Ky.  54, 
10  S.  W.  134,  2  L.  E.  A.  594;  Langan  v.  Francklyn,  29  Abb.  N.  C. 
102,  20  N.  Y.  Supp.  404. 

17  Bliss  V.  Anderson,  31  Ala.  612,  70  Am,  Dec.  511. 

18  Zabriskie  v.  Cleveland,  C.  &  C.  R.  Co.,  23  How.  (64  U.  S.)  381, 
16  L.  ed.  488. 

19  Platteville  v.  Galena  etc.  R.  R.,  43  Wis.  493;  Stevens  v.  Erie 
R.  Co.,  29  Vt.  545;  Cohen  v.  Wilkinson,  1  Macn.  &  G.  481;  Hodgson 
V.  Earl  of  Powis,  1  De  Gex,  M.  &  G.  6;  Kemaghan  v.  Williams,  L.  R. 
6  Eq.  228;  Pickering  v.  Stephenson,  L.  R.  l4  Eq.  322;  Alexander  v. 
Atlanta  &  W.  P.  R.  Co.,  113  Ga.  193,  38  S.  E.  772,  54  L.  R.  A.  305; 
Bagshaw  v.  Eastern  Union  Ry.,  7  Hare,  114,  130,  131;  Bernan  v.  Rnf- 
ford,  6  Eng.  L.  &  Eq.  106,  1  Sim.  (N.  S.)  550;  Simpson  v.  Denison, 
10  Hare,  51;  Colman  v.  Eastern  Counties  Ry.,  10  Beav.  1;  Central 
Ry.  Co.  V.  Collins,  40  Ga.  582;  Stewart  v.  Erie  &  W.  T.  Co.,  17  Minn. 
372;  Salomons   v.   Laing,   12   Beav.   377. 

20  Sears  v.  Hotchkiss,  25  Conn.  171,  65  Am.  Dec.  557, 

21  Hough  V.  Cook  County  Land  Co.,  73  111.  23,  24  Am.  Rep.  230. 

22  Pronick  v.  Spirits  Dist.  Co.,  58  N.  J.  Eq.  97,  42  Atl.  586. 

23  Donald  v.  American  S.  &  R.  Co.,  62  N.  J.  Eq.  729,  48  Atl.  771, 
1116. 

24  Manderson  v.  Commercial  Bank,  28  Pa.  St.  379. 


643  INJUNCTION;  CORPORATIONS.  §  30S 

titled  to  have  protected.^*  But  until  this  contract  is 
fully  made  there  is  no  ground  for  action.  Therefore, 
a  subscriber  for  stock  who  has  not  fulfilled  the  condi- 
tions of  his  subscription,  has  no  standing  in  court.^* 
It  has  sometimes  been  held  that  relief  will  be  granted 
only  to  a  bona  fide  stockholder,  and  accordingly  the  in- 
junction has  been  refused  when  the  plaintiff  has  been 
in  reality  acting  in  the  interest  of  another  corporation.^'^ 
It  is  said  that  a  stockholder  cannot  restrain  payment 
for  benefits  received  under  an  ultra  vires  contract, 
where  the  other  party  had  no  notice  of  the  excess  of 
power.2^ 

While  a  stockholder  may  thus  obtain  final  relief,  he 
is  often  denied  a  preliminary  injunction.  Such  an  in- 
junction is  granted  ordinarily  only  where  a  clear  case 
can  be  made  out  in  the  complaint.  Questions  of  ultra 
vires  depend  largely  upon  the  construction  and  consti- 
tutionality of  laws  and  charters,  and  consequently  are 
frequently  of  too  difficult  a  nature  to  be  determined 
upon  a  preliminary  application.^*  And  in  order  to  ob- 
tain any  relief  whatever,  he  must  act  promptly.'*' 
"Shareholders  cannot  lie  by,  sanctioning,  or  by  their 
silence  at  least  acquiescing  in,  an  arrangement  which 
is  ultra  vires  of  the  company   to   which   they   belong, 

25  Byrne  v.  Schuyler  Elect.  Mfg.  Co.,  65  Conn.  336,  31  Atl.  833,  28 
L.  R.  A.  304. 

26  Busey  v.  Hooper,  35  Md.  15,  6  Am.  Rep,  350. 

27  Jenkins  v.  Auburn  City  Ry.  Co.,  27  A  pp.  Div.  553,  50  N.  Y. 
Supp.  852;  Filder  v.  London  etc.  R.  R.  Co.,  1  Hem.  &  M.  489.  Cf. 
post,  §  305,  at  note  59. 

28  Rankin  v.  Southwestern  Brewery  &  Ice  Co.  (N.  M.),  73  Pac. 
613. 

29  Stevens  v,  Missouri,  K.  &  T.  Ry.  Co.,  106  Fed.  771,  45  C.  C.  A. 
€11;  Smith  v.  Reading  City  Pass.  Ry.  Co.,  156  Pa.  St.  5,  26  Atl.  779. 

30  Black  V.  Delaware  &  R.  C.  Co.,  22  N.  J.  Eq.  415;  Great  Western 
Ry.  Co.  V.  Oxford,  W.  &  W.  Ry.  Co.,  3  De  Gex,  M.  &  G.  341;  Tanner 
V.  Lindell  Ry.  Co.,  180  Mo.  1,  103  Am.  St.  Rep.  534,  79  S.  W.  155. 


{  304  EQUITABLE  EEMEDrES.  644 

watching  the  result — if  it  be  favorable  and  profitable 
to  themselves,  to  abide  by  it  and  insist  on  its  validity; 
but  if  it  prove  unfavorable  and  disastrous,  then  to  in- 
stitute proceedings  to  set  it  aside. "^*  Thus,  where  a 
corporation  issued  preferred  stock  ultra  vires,  a  stock- 
holder was  refused  an  injunction  to  restrain  payment 
of  privileged  dividends,  after  the  stock  had  reached  the 
hands  of  a  bona  fide  purchaser.^^ 

§  304.  Suits  by  Third  Parties. — A  private  individual 
who  is  not  a  stockholder  is  not  entitled  to  an  injunc- 
tion to  restrain  an  act  merely  ultra  vires.  He  has  no 
relation  of  a  contractual  nature  which  gives  him  any 
rights,  nor  is  he  entitled  to  sue  on  behalf  of  the  state.^^ 
Where,  however,  the  ultra  vires  act  amounts  to  a  private 
nuisance,  or  is  a  public  nuisance  which  specially  in- 
jures the  individual,  or  where  it  interferes  with  some 
vested  right  and  is  otherwise  a  subject  of  equitable  ju- 
risdiction, an  injunction  will  be  granted.  In  accord- 
ance with  these  principles  relief  has  been  denied  where 
a  railroad  track,  although  a  public  nuisance,  would  not 
specially  injure  the  plaintiff  ;^^  where  a  railroad  moved 
its  station  and  abandoned  part  of  its  track  f^  and  where 
a  road  corporation  was  using  material  not  authorized 
by  its  charter.^*     Likewise,  a  simple  contract  creditor 

81  Gregory  v.  Patchett,  33  Beav.  595,  602;  Rabe  v.  Dunlap,  51  N. 
J.  Eq.  40,  25  Atl.  959. 

32  Kent  V.  Quicksilver  Min,  Co.,  78  N.  Y.  159. 

33  Henry  v.  Ann  Arbor  Ry.  Co.,  116  Mich.  314,  75  N.  W.  886. 
See  Packard  v.  Thiel  College  (Pa.),  56  Atl.  869,  where  the  question 
was  left  undecided,  whether  subscribers  to  a  fund  to  build  a  college 
at  a  certain  place  were  sufficiently  interested  to  enjoin  the  ultra  mres 
act  of  its  removal  to  another  location. 

34  Philadelphia  W.  &  B.  R.  Co.  v.  Wilmington  City  Ry,  Co.  (Del.), 
38  Atl.  1067. 

35  Moore  v.  Brooklyn  City  R.  Co.,  108  N.  Y.  103,  15  N.  E.  191. 

86  Erin  Tp,  v.  Detroit  &  E.  Plank  Road  Co.,  115  Mich.  465,  73  N. 
W.   556. 


545  INJUNCTION;  CORPOEATIONS.  S  305 

has  been  denied  an  injunction  to  restrain  the  corpora- 
tion from  dealing  with  assets  iiltr^a  vires,  upon  an  alle- 
gation that  thereby  the  funds  available  for  paying  debts 
would  be  diminished.^'''  On  the  other  hand,  the  injunc- 
tion has  been  granted  when  a  street  railroad  was  laying 
its  tracks  ultra  vires  on  the  street,  to  plaintiff's  in- 
jury ;^^  where  a  street  railroad  was  changing  its  tracks 
in  violation  of  the  rights  of  a  borough,  which  was  plain- 
tiff;^^ where  a.  gas  company  was  laying  its  pipes  in  a 
country  highway  which  passed  plaintiff"'s  premises;^** 
where  a  railroad  company  was  about  to  build  over 
plaintiff's  land  without  authority  ;^^  and  where  a  turn- 
pike company  was  attempting  to  charge  tolls  to  persons 
exempted  by  its  charter,  on  the  ground  of  a  vested  right 
in  the  plaintiffs.^^  The  injunction,  however,  will  not 
be  granted  where  the  injury  is  slight,^^  or  where  it  will 
"esult  in  public  inconvenience.*^ 

§  305.  Suits  by  Stockholders  Against  Directors  for  "Wrong- 
ful Dealing  with  Corporate  Property. — It  is  not  within  the 
scope  of  this  chapter  to  attempt  any  general  discussion 
of  the  great  variety  of  cases  in  which  equitable  relief 

37  Mitts  V.  Northern  Ey.,  L.  E.  5  Ch.  621. 

38  Bonaparte  v.  Baltimore  etc.  Ey.  Co.,  75  Md.  340,  23  Atl.  784. 

39  Borough  of  Shamokin  v.  Shamokin  &  M.  C.  Elect.  Ey.  Co.,  196 
Pa.  St.  166,  46  Atl.  382. 

40  Sterling's  Appeal,  111  Pa.  St.  35,  56  Am.  Eep.  246,  2  Atl. 
Iffo;  and  the  same  rule  may  apply  when  a  gas  company,  in  excess 
of  charter  powers,  attempts  to  lay  gaspipes  in  the  street  of  a  city, 
whereby  plaintiff  will  suffer  special  injury;  Seattle  Gas  &  Electric 
Co.  V.  Citizens'  Light  &  Power  Co.,  123  Fed.  588. 

41  Western  Md.  E.  E.  Co.  v.  Owings,  15  Md.  204,  74  Am.  Dec. 
563. 

42  Louisville  &  T.  Turnpike  Co,  v.  Boss,  19  Ky.  Law  Eep.  1954, 
44  S.  W.  981. 

43  Becker  v.  Lebanon  &  M.  Ey.  Co.,  188  Pa.  St.  484,  41  Atl.  612, 
43  Wkly.  Not.  Cas.  229. 

4  4  Ware  v.  Eegents'  Canal  Co.,  3  De  Gex  &  J.  212. 
Equitable  Eemedies,  Vol.  I — 35 


5  305  EQUITABLE  KEMEDIES.  54(i 

is  sought  by  stockholders  against  wrongful  dealing  with 
corporate  property.  Such  a  discussion  should  be 
looked  for  in  treatises  on  substantive  equity,"*^  or  on 
the  law  of  corporations.  Suits  of  this  character,  so 
far  as  the  form  of  the  remedy  is  concerned,  are  usually 
suits  for  an  accounting.  Where,  however,  the  nature 
of  the  facts  calls  for  preventive  relief,  it  is  usually 
granted  with  great  fi'ecdom. 

In  this  class  of  suits,  since  the  cause  of  action  exists 
primarily  in  behalf  of  the  corporation,  the  stockholder 
is  not  permitted  to  sue  unless  he  shows,  either  that  the 
corporation  actually  refuses  to  bring  the  suit,  or  that 
a  refusal  of  the  managing  body,  if  it  had  been  requested 
to  bring  the  suit,  might  be  inferred  with  reasonable  cer- 
tainty.^^ Further,  the  right  of  the  stockholder  to  sue 
in  cases  where  the  corporation  is  the  proper  party  to 
bring  the  suit  is  limited  to  cases  where  the  acts  of  the 
directors  or  stockholders  complained  of  are  either  fraud- 
ulent, illegal  or  in  breach  of  trust;  in  other  cases  than 
these  a  court  of  equity  has  no  jurisdiction  to  interfere 
in  the  internal  management  of  the  affairs  of  corpora- 
tions.^^    Subject  to  these  fundamental  rules,  a  stock- 

4B  See  3  Pom.  Eq.  Jur.,   §§  1094,   1095. 

46  Id.;  in  addition  to  the  cases  there  cited,  see  the  following  cases, 
in  which  an  injunction  was  sought:  Putnam  v.  Euch,  54  Fed.  216; 
Ball  V.  Kutland  E.  Co.,  93  Fed.  513  (sufficient  demand  on  the  cor- 
poration); Memphis  &  C.  E.  Co.  v.  Woods,  88  Ala.  630,  16  Am.  St. 
Eep.  81,  7  South.  108,  7  L.  E.  A.  605;   Mack  v.  De  Bardeleben  Coal 

6  1.  Co.,  90  Ala.  396,  8  South.  loO,  9  L.  E.  A.  650  (demand  excused) ; 
Harding  v.  American  Glucose  Co.,  182  111.  551,  74  Am.  St.  Eep.  189, 
55  N.  E.  577;  Lewisohn  v.  Anaconda  Copper  Min.  Co.,  26  Misc.  Eep. 
613,  56  N.  Y.  Supp.  807;  Fitchett  v.  Murphy,  61  N.  Y.  Supp.  182,  46 
App.  Div.  181. 

47  Hawes  v.  Oakland,  104  U.  S.  450,  26  L.  ed.  827;  MacDougall 
V.  Gardiner,  L.  E.  1  Ch.  D.  14;  Shaw  v.  Davis,  78  Md.  314,  28 
Atl.  619,  23  L.  E.  A.  294;  Leslie  v.  Lorillard,  110  N.  Y.  519,  18  N.  E. 
363,  1  L.  E.  A.  456;  Burden  v.  Burden,  159  N.  Y.  287,  54  N.  E.  17; 
Lewisohn  v.  Anaconda  Copper  Min.  Co.,  26  Misc.  Eep.  613,  56  N.  Y. 


547  INJUNCTION;  CORPOEATIONS.  §  305 

holder's  right  to  enjoin  infra  vires  acts  on  the  part  of 
the  corporate  authorities  has  been  recognized  in  an  al- 
most unlimited  variety  of  instances,  of  which  the  fol- 
lowing may  serve  as  illustrations:  he  may  enjoin  mis- 
appropriation of  corporate  funds  ;^^  fraudulent  prosecu- 
tion of  suits  against  the  company  by  the  directors;*' 
but  not,  it  seems,  the  auditing  of  a  fraudulent  account, 
since  the  allowance  of  the  account  would  not  conclude 
anyone,  and  no  irreparable  injury  would  result  f°  he 
may  enjoin  a  wrongful  lease  of  the  corporate  property, 
amounting  to  a  breach  of  trust  ;^^  the  payment  of  illegal 
dividends,  but  not  of  dividends  already  declared,  unless 
all  the  shareholders  are  before  the  court  ;^^  the  payment 
of  an  illegal  tax;^^  the  fixing  of  a  particular  date  for 
holding  the  general  meeting  of  the  company  for  the 
purpose  of  preventing  shareholders  from  exercising 
their  voting  powers;^*  the  voting  of  the  majority  of 

Supp.  807;  Peabody  v.  Westerly  Waterworks,  20  E.  I.  176,  37  Atl. 
807;  Phillips  v.  Providence  Steam  Engine  Co.,  21  E.  I.  302,  43  Atl. 
598,  45  L.  E.  A.  560. 

48  People's  Sav.  Bank  v.  Colorado  Min.  etc.  Co.,  8  Colo.  App.  354. 
46  Pac.  620. 

49  Birmingham  Min.  etc.  Co.  v.  Mutual  Loan  &  Trust  Co.,  96  Ala. 
364,  11   South.  368. 

50  Eogers  v.  Lafayette  Agricultural  Works,  52  Ind.  296.  The  cor- 
rectness of  this  decision  may  well  be  doubted. 

51  Pond  V.  Vermont  etc.  E.  E.  Co.,  12  Blatchf.  280,  Fed.  Cas.  No. 
11,265. 

52  Since  each  shareholder  has  a  right  of  action  to  recover  a  divi- 
dend that  has  been  declared:  Carlisle  v.  South  Eastern  Ey,,  1  Macn. 
&  G.  689. 

53  Dodge  V.  Woolsey,  18  How.  (59  U.  S.)  331,  13  L.  ed.  401; 
Mechanics'  &  Traders'  Bank  v.  Debolt,  18  How.  (59  U.  S.)  380,  15 
L.  ed.  458;  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429,  15 
Sup.  Ct.  673,  39  L.  ed.  759  (the  question  of  the  adequacy  of  the  legal 
remedy  was  waived);  but  see  Corbus  v.  Treadwell  Gold  Min.  Co.  99 
Fed.  334. 

54  Cannon  v.  Trask,  L.  E.  20  Eq.  669.  But  that  the  directors  will 
not   be   restrained   from   holding   an   irregular  meeting,   when   all    the 


I  305  EQUITABLE  EEMEDIES.  548 

the  stock  in  the  corporation,  held  by  a  rival  corporation 
whose  interests  are  in  conflict  with  those  of  the  for- 
mer ;^'^  the  voting  of  shares  of  stock  fraudulently  trans- 
ferred or  acquired,  under  various  circumstances;^* 
winding  up  the  affairs  of  the  corporation  and  disposing 
of  its  assets  in  a  manner  inconsistent  with  good  faith 
toward  the  minority  stockholders,^'^  or  at  variance  with 
the  statutes  on  the  subject.^^ 

It  has  been  held  that  a  bona  fide  minority  stockholder 
in  a  substantial  amount  is  not  precluded  from  enjoin- 
ing the  majority  stockholders  from  voting  to  make  a 
certain  disposition  of  the  corporate  property  merely 
because  his  principal  motive  is  to  protect  another  cor- 
poration and  his  interest  therein.^^ 

In  a  very  important  recent  case  it  was  held  that  a  dis- 
senting stockholder  may  sue  in  behalf  of  himself  and 
other  stockholders  to  prevent  the  corporation  and  its 
officers  from  carrying  out  an  agreement  to  convey  its 
property  to  another  corporation  whose  purpose  was  to 

acts  of  Buch  meeting  will  be  void  for  want  of  a  quorum,  see  Sulli- 
van V.  Venner,  63  Hun,  634,  18  N.  Y.  Supp.  398. 

55  Memphis  &  C.  E,  Co.  v.  Woods,  88  Ala.  630,  16  Am.  St.  Eep.  81, 
7  South.  108,  7  L.  E.  A.  605,  and  cases  cited;  George  v.  Central  E. 
E.  &  B.  Co.,  101  Ala.  607,  14  South.  752. 

56  Campbell  v.  Poultney,  6  Gill  &  J.  (Md.)  94,  26  Am.  Dec.  559; 
Webb  v.  Eidgely,  38  Md.  364;  Hilles  v.  Parrish,  14  N.  J.  Eq.  380. 
But  one  who  was  induced  to  subscribe  for  stock  of  a  corporation  up- 
on the  assurance  of  a  stockholder  that  a  particular  business  would 
not  be  engaged  in,  cannot  enjoin  such  stockholder  from  voting  to 
take  up  such  business:  Converse  v.  Hood,  149  Mass.  471,  21  N.  E. 
878,  4  L.  E.  A.  521. 

57  Hayden  v.  Official  Hotel  etc.  Co.,  42  Fed.  875  (preliminary  in- 
junction refused);  Treadwell  v.  United  Verde  Copper  Co.,  62  N.  Y. 
Supp.  708,  47  App.  Div.  613  (preliminary  injunction  granted;  a 
history  of  outrageous  fraud   by  a  notorious  public   character). 

58  Hunt  V.  American  Grocery  Co.,  81  Fed.  532. 

59  Lewisohn  v.  Anaconda  Copper  Min.  Co.,  26  Misc.  Eep.  613,  56 
N.  Y.  Supp.  807,  50  N.  Y.  Supp.  253,  23  Misc.  Eep.  31.  Com- 
pare ante,  §  303,  at  note  27. 


549  INJUNCTION;  COKPORATIONS.  S  306 

create  a  monopoly  prohibited  by  statute;  the  stockhold- 
er's right  to  sue  was  maintained,  not  on  the  ground  of 
protecting  the  public  interests,  but  because  the  creation 
of  the  monopoly  would  expose  the  corporation  to  a  for- 
feiture of  its  charter  rights,  and  the  value  of  the  com- 
plainant's stock  would  thereby  be  destroyed.^^ 

§  306.  Other  Suits  by  Stockholders. — Injunction  is  some- 
times an  appropriate  remedy  where  the  stockholder's 
individual  rights,  as  distinguished  from  those  of  the  cor- 
poration, are  invaded. ^^  Thus,  an  injunction  is  al- 
lowed in  some  cases  to  restrain  the  enforcement,  by 
sale  of  the  complainant's  stock,  of  the  corporation's  lien 
thereon  for  a  debt  or  liability  incurred  to  the  corpora- 
tion by  the  stockholder  ;^2  q^  to  restrain  the  forfeiture 
and  sale  by  the  company  of  non-assessable  shares,  when 
there  would  probably  be  no  way  of  accurately  estimat- 
ing their  market  value,  and  irreparable  injury  might 
result  f^  against  assessing  stock  beyond  its  par  value  ;^* 
but  not  to  restrain  an  action  to  recover  dues  imposed 
under  a  by-law,  on  the  ground  of  its  invalidity,  when 
that  would  constitute  a  perfect  defense  at  law.^** 

60  Harding  v.  American  Glucose  Co.,  182  111.  5.51,  74  Am.  St.  Rep. 
189,  55  N.  E.  577;  distinguishing  Coquard  v.  Oil  Co.,  171  lU.  480,  49 
N.  E.  563,  where  the  stockholder  sought  the  forfeiture  of  the  corpora- 
tion's charter  for  injury  to  the  public  rights,  a  relief  that  could  only 
be  enforced  by  the  state;  and  also  distinguishing  Cope  v.  District  Fair 
Assn.,  99  111.  489,  39  Am.  Rep.  30,  where  no  pecuniary  injury  to  the 
company  or  the  complainants  from  the  alleged  illegal  acts  was  shown. 

61  For  injunction  in  connection  with  suits  to  procure  the  transfer 
of  stock  upon  the  company's  books,  see  post,  Vol.  11. 

62  See  Elliott  v.  Sibley,  101  Ala.  344,  13  South.  500,  for  requisite 
jileading  in  such  cases. 

63  San  Antonio  St.  Ry.  Co.  v.  Adams  (Tex.  Civ.  App.),  25  S.  W. 
639. 

64  Redkey  v.  Citizens'  Natural  Gas  etc.  Co.,  27  Ind.  App.  1,  60  N. 
E.  716. 

65  Kinnan  v.  Sullivan  County  Club,  26  App.  Div.  213,  50  N.  Y. 
Supp.  9-5. 


i  307  EQUITABLE  KEMEDIES.  550 

It  is  well  settled  that  a  suit  will  lie  by  a  holder  of 
common  stock  to  enjoin  any  unlawful  or  unauthorized 
issue  of  preferred  stock,  to  the  prejudice  of  the  stock- 
holder's vested  individual  right  in  his  proportionate 
share  of  the  corporate  property  and  of  the  profits  of  the 
business.^^ 

In  Ohio,  injunction  is  held  to  be  the  proper  remedy 
to  enforce  the  stockholder's  right  to  inspect  the  books 
and  records  of  the  corporation,  although  in  other  states 
the  remedy  is  usually  by  mandamus  f  and  the  latter, 
and  not  injunction,  is  the  proper  remedy  to  compel  the 
corporation  to  post  for  the  public  benefit  a  copy  of 
their  by-laws  and  financial  statement.^^ 

§  307.  No  Injunction  to  Determine  Title  to  Corporate  Of- 
fice.— A  court  of  equity  will  not  primarily  take  juris- 
diction to  determine  the  legality  of  an  election  of  direc- 
tors, or  to  remove  a  director  who  is  in  possession  of 
the  office.  The  court  will  inquire  into  the  regularity  of 
the  election,  or  the  right  of  the  person  to  the  office, 
only  when  the  question  arises  incidentally  and  collater- 
ally, in  a  suit  of  which  the  court  has  rightful  jurisdic- 
tion on  other  grounds,^^  such  as  fraud  and  breach  of 

66  Ernst  V.  Elmira  Municipal  Improvement  Co.,  24  Misc.  Eep. 
583,  54  N.  Y.  Supp.  116;  Kent  v.  Quicksilver  Min.  Co.,  78  N.  Y.  159; 
Campbell  v.  Zylouite  Co.,  122  N.  Y.  455,  25  N.  E.  853,  11  L.  E.  A. 
596. 

67  The  Ohio  rule  depends  on  the  wording  of  the  statute  definixiT 
the  writ  of  mandamus:  Cincinnati  Volksblatt  Co.  v.  Hoffneister,  62 
Ohio  St.  189,  78  Am.  St.  Eep.  707,  56  N.  E.  1033,  48  L.  E.  A.  732. 

C8  Boardman  v.  Marshalltown  Grocery  Co.,  105  Iowa,  445,  75  N.  W. 
343. 

69  Perry  v.  Oil  Mill  Co.,  93  Ala.  364,  9  South.  217;  Elliott  v.  Sibley, 
101  Ala.  344,  13  South.  500;  Carmel  Natural  Gas  etc.  Co.  v.  Small, 
150  Ind.  427,  47  N.  E.  11,  50  N.  E.  476;  Sherman  v.  Clark,  4  Nev. 
138,  97  Am,  Dec,  516;  Kean  v.  Union  Water  Co.,  52  N.  J.  Eq.  813, 
46  Am.  St.  Eep.  538,  31  Atl.  282,  reversing  52  N,  J,  Eq.  Ill,  27  Atl, 
1015;  Owen  v,  Whitaker,  20  N.  J,  Eq,  122;  Mickles  v.  Eochester  City 


551  INJUNCTION;  COKPOEATIONS.  S  308 

trust. "^^^  The  remedy  to  determine  the  right  to  cor- 
porate office  is  by  quo  wm-ranto  or  special  statutory 
proceeding,  and  these  are  at  least  as  adequate  as  the 
remedy  by  injunction  would  be.'''^  When  a  court  of 
equity  takes  jurisdiction  on  other  grounds,  and  the  title 
to  corporate  office  is  incidentally  involved,  its  judgment 
cannot  go  to  the  extent  of  ousting  a  de  facto  officerJ^ 
The  court  may  protect  by  injunction  the  possession  of 
de  facto  trustees  against  rival  claimants  of  their  office, 
until  their  title  can  be  properly  adjudicated  upon  in 
a  legal  proceeding,  for  the  purpose  of  preventing  an 
unseemly  struggle  for  possession  between  the  rival 
boards  of  trusteesJ^ 

§  308.  Existence  of  a  Corporation  cannot  be  Challenged 
by  Injunction — Injunction  in  Connection  with  Receivership. 
A  court  of  equity  has  no  inherent  jurisdiction,  either 
at  the  suit  of  the  state  or  of  a  private  person,  to  chal- 
lenge or  question  the  legal  existence  of  a  de  facto  cor- 
poration, or  to  take  away  its  chartered  privileges,  even 
though  the  purpose  for  which  it  was  organized  may 
have  been  unlawful;  the  remedy  is  by  quo  warrantoJ^ 

Bank,  11  Paige  (N.  Y.),  118,  42  Am.  Dec.  103;  Ciancimino  v.  Man, 
48  N.  Y.  St.  Kep  697,  20  N.  Y.  Supp.  702;  Model  Building  &  L.  Assn. 
V.  Patterson,  34  N.  Y.  Supp.  241,  12  Misc.  Eep.  400;  Mozley  v.  Als- 
ton, 1  Phill.  Ch.  790;  Bedford  Springs  Co.  v.  McMeen,  161  Pa.  St. 
639,  29  Atl.  99.     But  see  Haskell  v.  Read  (Neb.),  93  N.  W.  997. 

70  Johnston  v.  Jones,  23  N.  J.  Eq.  216. 

71  Carmel  Natural  Gas  etc.  Co.  v.  Small,  150  Ind.  427,  47  N.  E. 
11,  50  N.  E.  476;  Kean  v.  Union  Water  Co.,  52  N.  J.  Eq.  813,  46  Am. 
St.  Eep.  538,  31  Atl.  282;  Mickles  v.  Eochester  City  Bank,  11  Paige 
(N.  Y.),  118,  42  Am.  Dec.  103;  Ciancimino  v.  Man,  48  N.  Y,  St.  Eep. 
697,  20  N.  Y.  Supp.  702. 

72  Ciancimino  v.  Man,  48  N.  Y.  St.  Eep.  697,  20  N.  Y.  Supp.  702, 
and  cases  cited. 

73  Model  Building  &  L.  Assn.  v.  Patterson,  12  Misc.  Eep.  400,  34 
N.  Y.  Supp.  241. 

74  Stockton  V.  American  Tobacco  Co.,  55  N.  J.  Eq.  352,  36  Atl. 
971;  affirmed  sub  nom.  Miller  v.  American  Tobacco  Co.,  42  Atl.  1117; 


S  308  EQUITABLE  EEMEDIES.  552 

There  is  a  clear  distinction  between  an  injunction  di- 
rected against  acts  outside  the  scope  of  the  charter  priv- 
ileges of  a  corporation,  and  an  injunction  against  infra 
vires  acts,  resting  upon  the  conduct  of  the  incorpora- 
tors preceding  and  leading  up  to  the  incorporation  of 
the  company.'^^  An  injunction  cannot  be  allowed 
which  would  strike  at  the  authority  of  the  corporation 
to  act  at  all  as  a  corporation;  and  a  decree  restraining 
the  officers  and  agents  of  a  corporation  from  exe- 
cuting corporate  acts  is  the  same  as  a  decree  enjoin- 
ing the  corporation  itself.^^  Nor  does  the  rule  laid 
down  in  the  last  paragraph,  that  the  legality  of  an 
election  of  corporate  officers  may  be  questioned  when 
the  matter  arises  incidentally  in  connection  with  some 
recognized  ground  for  equitable  jurisdiction,  apply  by 
analogy,  so  as  to  enable  a  court  of  equity  to  determine 
collaterally  a  question  of  corporate  existenceJ'^ 

When  a  receiver  is  appointed  under  the  statutes  pro- 
viding for  the  dissolution  of  corporations,  an  injunc- 
tion depriving  the  officers  of  the  corporation  of  control 
over  the  corporate  property  is  appropriate  and  custom- 
ary; such  injunction  is  frequently  authorized  by  the 
terms  of  the  statute.'^  ^ 

National  Docks  E.  Co.  v.  Centrrl  Ey.  Co.,  32  N.  J.  Eq.  755;  Elizabeth- 
town  Gas-Light  Co.  v.  Green,  46  N.  J.  Eq.  117,  18  Atl.  844;  affirmed 
49  N.  J.  Eq.   329,  24   Atl.  560;   Harrison   v.  Hebbard,   101   Cal.   152; 
Bayless  v.  Orne,  1  Freem,  Ch.   (Miss.)   173. 
"5  Stockton   V.    American   Tobacco    Co.,   supra. 

76  Stockton  V.  American  Tobacco  Co.,  supr'a. 

77  Stockton  V.  American  Tobacco  Co.,  supra. 

78  See  Morgan  v.  New  York  &  A.  E.  E.  Co.,  10  Paige,  290,  40  Am. 
Dec.  244.  As  to  injunction  restraining  creditors  from  enforcing  their 
demands  against  the  corporation,  when  proceedings  have  been  begun 
for  its  voluntary  dissolution,  see  In  re  Binghamton  General  Electric- 
Co.,  143  N.  Y.  261,  38  N.  E.  297;  In  re  French  Mfg.  Co.,  12  Hun, 
488. 


553  INJUNCTION;  VOLUNTAEY  ASSOCIATION.     §§  309,  310 


CHAPTER  XV. 


INJUNCTIONS  RELATING  TO  VOLUNTARY  ASSOCIA- 
TIONS AND  NON-STOCK  CORPORATIONS. 

XNAXY8I8, 

f  309.  In  general. 

§  310.  Expulsion  of  members. 

§  311.  Same — Injury  to  property. 

§  B12.  Expulsion  from  religious  organizations. 

§  313.  Expulsion  from  other  societies. 

§  314.  Protection  of  church  property  rights. 

§  315.  Same — When  rights  depend  upon  decision  of  superior  church 
tribunal. 

§  309.  In  General. — The  jurisdiction  of  equity  over 
voluntary  associations  and  corporations  not  organized 
for  profit  is  of  a  very  limited  character.  So  long  as 
the  organization  acts  in  accordance  with  its  valid  rules, 
equity  will  not  interfere  at  the  suit  of  members;^  nor 
will  relief  be  given  when  proper  redress  can  be  ob- 
tained within  the  body  itself.^  But  when  powers  are 
exceeded  and  rules  are  disregarded,  equity  may  enjoin 
at  the  suit  of  injured  members.^  The  ground  of  the 
jurisdiction  is  that  there  is  a  contract  between  the  or- 
ganization and  its  members,  for  a  violation  of  which 
an  injunction  is  a  proper  remedy. 

§  310.  Expulsion  of  Members.— Courts  of  equity  have 
often  been  called  upon  of  late  to  enjoin  the  illegal  ex- 

1  Bateman  v.  HoUinger  (N.  J.  Eq.),  30  Atl.  1107;  Francis  v.  Tay- 
lor, 31  Misc.  Rep.  187,  65  N.  Y.  Supp.  28. 

2  Grand   Castle   of  the   Golden  Eagles  v.  Bridgeton  Castle   (N.  J. 
Eq.),  40  Atl.  849. 

3  Supreme  Lodge,  Order  of  Golden  Chain  v.  Simering,  88  Md.  276, 
71  Am.  St.  Eep.  409,  40  Atl.  723,  41  L.  K.   720;   State  v.  Bankers' 


§  310  EQUITABLE  EEMEDIES.  554 

pulsion  of  members  of  unincorporated  associations  and 
benevolent  corporations.  Persons  becoming  members 
of  these  organizations  usually  subscribe  to  and  are 
bound  by  certain  by-laws;  and  so  long  as  the  associa- 
tion keeps  strictly  within  its  rules,  the  court  will  liot 
generally  interfere.  The  cases  calling  for  the  aid  of 
equity  arise  when  the  rules  are  exceeded,  and  in  rare 
cases,  w^hen  the  rules  are  themselves  illegal. 

It  is  generally  asserted  to  be  a  fundamental  princi- 
ple of  equity  that  only  substantial  property  rights  will 
be  protected.  Therefore,  it  would  seem  that  an  injunc- 
tion should  be  granted  in  cases  of  this  kind  only  where 
some  such  right  is  involved.  In  cases  of  social  clubs, 
however,  the  courts  have  sometimes  gone  .further. 
"In  all  these  cases  the  suit  in  law  or  equity  has  been 
sustained  upon  the  ground  that  the  relations  of  a  mem- 
ber to  such  society  were  contractual,  and,  if  the  rela- 
tion had  been  severed  in  violation  of  the  law  regulating 
membership  enacted  by  themselves,  that  there  was  a 
breach  of  contract."^  Thus,  it  has  been  said  that  "in 
every  proceeding  before  a  club,  society,  or  association, 
having  for  its  object  the  expulsion  of  a  member,  the 
member  is  entitled  to  be  fully  and  fairly  informed  of 
the  charge,  and  to  be  fully  and  fairly  heard";  and  if 
such  hearing  is  not  allowed,  he  is  entitled  to  an  in- 
junction.^    "In  the  absence  of  defined  regulations  as 

Union  of  the  World  (Neb.),  99  N.  W.  531;  German  Mut.  Fire  Ins. 
Co.  V.  Schwarzwalder  (N.  J.  Eq.),  44  Atl.  769;  Kalbitzer  v.  Goodhue, 
52  W.  Va.  435,  44  S.  E.  264;  Flaherty  v.  Portland  etc.  Benev.  Assn. 
(Me.),  58  Atl.  58  (unwarranted  use  of  funds  of  mutual  benefit 
society). 

4  Nance  v.  Busby,  91  Tenn.  303,  18  S.  W.  874,  15  L.  R.  A.  801. 

5  Fisher  v.  Keane,  L.  R.  11  Ch.  D.  353;  Labouchere  v.  Earl  of 
■Wharncliffe,  13  Ch.  D.  346.  In  Harington  v.  Sendall,  [1903]  1  Ch. 
921,  expulsion  was  enjoined,  of  a  member  who  had  violated  a  resolu- 
tion raising  the  annual  dues,  which  resolution  was  not  authorized 
by  the  rules  governing  the  club. 


555  INJUNCTION;    VOLUNTARY   ASSOCIATIONS,     s^  311 

to  the  causes  for  expulsion,  the  ordinary  principles  of 
justice  govern.  Offenses  against  the  tenets  of  the  or- 
der justify  action.  Caprice  and  malice  do  not."®  Ac- 
cordingly, it  has  been  held  that  an  injunction  may 
issue  when  no  just  cause  for  expulsion  is  shown,  even 
though  the  outward  forms  of  procedure  have  been  fol- 
lowed."^ Before  resorting  to  equity,  however,  the  in- 
jured party  should  first  exhaust  his  remedy  within  the 
organization,  especially  where  no  property  right  is  di- 
rectly involved.^ 

§  311.  Same— Injury  to  Property.— Where  an  illegal 
expulsion  works  a  direct  injury  to  property  rights,  the 
jurisdiction  of  equity  is  clear,  and  the  injunction  will 
be  granted  without  question.  The  only  inquiry  in  such 
cases  is  whether  the  expulsion  is  illegal ;  and  when  that 
is  determined,  the  injunction  follows  as  a  matter  of 
course.     Thus,  when  a  suspension  will  necessarily  re- 

6  Heaton  v.  Hull,  28  Misc.  Eep.  97,  59  N.  Y.  Supp.  281. 

7  Id.  In  this  case  the  court  said:  "I  should  therefore  hold  that, 
even  if  the  outward  forms  of  the  society  had  been  observed  in  de- 
grading this  chapter  and  its  members,  still  such  a  blow  was  struck 
to  the  vital  principles  of  the  order  and  the  rights  of  its  members 
that  no  formalities  could  justify  such  destructive  action,  and  any  one 
aggrieved  could  appeal  to  the  only  resource  left, — the  benign,  yet 
powerful,  protection  of  the  law.  And  it  is  a  mistake  to  rest  upon 
the  assertion  that  law  recognizes  only  material  property  injuries, 
and  has  no  care  for  wounded  emotions  or  character.  Even  in  the 
cruder  days  of  the  common  law,  it  gave  to  the  lost  service  of  a 
daughter  or  wife  pence,  while  it  gave  to  the  hurt  sensibilities  of  the 
father  or  husband  hundreds  of  pounds.  It  atoned  for  injury  to 
character  and  wounded  feeling  by  exemplary  damages.  And  courts 
of  equity,  such  as  the  one  now  appealed  to,  grasp  jurisdiction  of 
other  than  property  injuries,  where  equitable  considerations  require 
action  to  prevent  hurt  to  standing  or  character  which  damages  may 
not  compensate." 

8  Mead  v.  Stirling,  62  Conn.  586,  27  Atl.  591,  23  L.  R.  A.  227; 
Thomas  v.  Musical  Mut.  Pro.  Union,  121  N.  Y.  45,  24  N.  E.  24,  8 
L.  E.  A.  175  (reversing  49  Hun,  171,  2  N.  Y.  Supp.  195);  O'Brien  v. 
Musical  Mut.  P.  &  B.  Union,  64  N.  J.  Eq.  525,  54  Atl.  150. 


8  311  EQUITABLE  EEMEDIES.  656 

suit  in  affecting  a  member's  financial  standing,  as  well 
as  deprive  him  of  the  use  of  property  that  is  common 
to  the  whole  association,  the  court  will  enjoin  action 
under  an  illegal  by-law.*  In  the  case  just  cited  in  the 
note,  the  plaintiff  was  a  member  of  a  local  Board  of 
Fire  Underwriters,  and  was  threatened  with  suspen- 
sion for  employing  more  agents  than  the  rules  allowed. 
The  court  held  that  the  rules  were  void  because  in  re- 
straint of  trade,  and  that  therefore  a  suspension  would 
be  invalid.  The  injury  consisted  in  loss  of  business 
and  inconvenience  resulting  from  denial  of  a  member- 
ship right  to  consult  fire  maps.  Likewise,  a  suspen- 
sion from  a  Merchants'  Exchange  for  violating  a  rule 
which  does  not  warrant  suspension,^"  or  an  expulsion 
from  a  Board  of  Trade  without  opportunity  to  make 
a  defense  which  the  by-laws  permit  members  to  make,^^ 
will  be  enjoined  at  the  suit  of  the  injured  party.  It 
has  been  held,  however,  in  a  similar  case  that  there 
can  be  no  injunction  after  the  expulsion  has  taken 
place.^2  Tjjg  reason  given  is  that  the  writ  of  injunc- 
tion is  preventive  only,  and  will  not  issue  to  redress 
past  wrongs.  It  would  seem  that  a  sufficient  answer 
to  this  line  of  argument  is  that  where  the  proceedings 
are  illegal  there  is  not  an  expulsion  which  the  courts 
will  recognize.     Hence,  the  injunction  should  issue  to 

9  Huston  V,  Eentlinger,  91  Ky.  333,  34  Am.  St.  Eep.  225,  15  S. 
W.  867. 

10  Albers  v.  Merchants'  Exchange,  39  Mo.  App.  583. 

11  Ryan  v.  Cudahy,  157  111.  108,  48  Am.  St.  Eep.  305,  41  N.  E.  760, 
49  L.  E.  A.  353;  Bartlett  v.  L,  Bartlett  &  Son  Co.,  116  Wis.  450,  93 
N.  W.  473.  An  injunction  has  been  allowed  to  restrain  the  expulsion 
of  a  member  from  a  news  association:  Inter-Ocean  Pub.  Co.  v.  As- 
sociated Press,  184  111.  438,  75  Am.  St.  Eep.  184,  56  N.  E.  822,  48 
L.  E,  A.  568. 

12  Fisher  v.  Board  of  Trade,  80  111.  85  ("If  appellant  has  been 
improperly  expelled  by  proceedings  contrary  to  the  constitution  and 
by-laws  or  rules  of  the  board,  a  court  of  chancery  cannot  restore 
him  "). 


557  INJUNCTION;   VOLUNTARY   ASSOCIATIONS.       S  312 

protect  the  plaintiff's  present  right  of  membership. 
The  injunction  will  not  be  granted,  in  the  absence  of 
any  other  ground,  when  the  property  injury  is  con- 
jectural only,  as,  for  instance,  where  the  punishment 
is  a  fine  which  may  lead  to  suspension  if  not  paid,  or 
if  the  offense  is  repeated  ;^^  nor  will  relief  be  awarded 
on  the  ground  that  due  notice  of  the  hearing  has  not 
been  given,  when,  as  a  matter  of  fact,  the  member  has 
known  of  the  proceeding  and  is  therefore  not  injured;^* 
nor  when  the  association  itself  is  an  illegal  one.^*^ 

In  determining  whether  or  not  the  expulsion  is 
wrong,  the  court  will  generally  inquire  only  into  the 
regularity  of  the  proceedings,  and  sometimes,  as  stated 
above,  into  the  legality  of  the  rules.  "Proceedings  for 
expulsion  from  a  beneficiary  association  must  be  in  ac- 
cordance with  its  constitution  and  by-laws,  to  the  ex- 
tent that  the  member  expelled  shall  have  notice  and 
shall  be  tried  on  a  charge  within  the  jurisdiction  of  the 
tribunal  trying  him."^® 

§  312.  Expulsion  from  Eeligious  Organizations. — An  in- 
junction will  not  ordinarily  issue  to  restrain  expulsion 
from  a  church  or  religious  organization,  for  generally 
there  is  no  property  right  involved.  "Church  relation- 
ship stands  upon  an  altogether  higher  plane,  and  church 
membership  is  not  to  be  compared  to  that  resulting 
from  connection  with  mere  human  associations  for 
profit,  pleasure  or  culture.     The  church  undertakes  to 

13  Thomas  v.  Musical  Mut.  Pr.  Union,  121  N.  Y.  45,  24  N.  E.  24, 
8  L.  E.  A.  175  (reversing  49  Hun,  171,  2  N.  Y.  Supp.  195). 

i4  Grand  Com.  of  Mass.  United  Order  of  the  Golden  Cross 
V.  Stewart,  177  Mass.  235,  58  N.  E.  689. 

16  Greer  v.  Payne,  4  Kan.  App.  153,  46  Pac.  190. 

16  Women's  Catholic  Order  of  Foresters  v.  Haley,  86  III.  App. 
330.  Gregg  v.  Massachusetts  Med.  Soc,  111  Mass.  185,  15  Am.  Sep. 
24,  is  apparently  contra. 


9  312  EQUITABLE  REMEDIES.  558 

deal  only  with  the  spiritual  state  of  man.  It  does  not 
appeal  to  his  purely  human  and  temporal  interests. 
....  No  property  rights  of  a  personal  kind  depend 
upon  membership.  No  pecuniary  right,  or  civil  right 
of  any  character"  is  affected  by  expulsion. ^"^  There- 
fore, a  minister  cannot  be  enjoined  from  striking  plain- 
tiff's name  from  the  roll  of  church  communicants.^^  In 
the  case  cited,  the  court  said:  "All  questions  of  faith, 
doctrines,  and  discipline  belong  exclusively  to  the 
church  and  its  spiritual  officers;  and  the  courts  will 
neither  review  their  determination  on  the  facts,  nor 
their  decision  on  the  question  of  jurisdiction."  "The 
question  of  church  membership  is  purely  ecclesiastical." 
Likewise,  it  is  held  that  a  minister  cannot  enjoin  a 
church  court  from  proceeding  with  a  trial  against  him.^^ 
It  was  urged  that  a  minister  has  a  vested  right  in  his 
office  and  the  salary  and  emoluments  attached  to  it; 
but  in  answer  it  was  held  that  the  right  to  salary  de- 
pended upon  the  continued  performance  of  duties  as 
rector,  and  that  the  contract  must  be  construed  and 
enforced  by  reference  to  the  canons.  Whether  an  ex- 
emption from  taxation  and  performance  of  certain  civil 
duties  are  such  property  rights  as  would  give  the  court 
jurisdiction  is  more  of  a  question;  but  granting  that 
they  are,  the  court  will  determine  only  whether  the 
tribunal  had  power  to  act.^"  It  cannot  inquire  into  the 
truth  of  the  charges. 

A  distinction  is  made  in  at  least  one  case  between 
expulsion  of  a  member  by  a  properly  organized  tri- 
bunal and  by  one  not    authorized.     The    "court    will 

17  Nance  v.  Busby,  91  Tenn.  303,  18  S.  W.  874.  And  a  court  of 
equity  will  not  in  an  action  for  an  injunction  try  title  to  a  church 
office:  Dayton  v.  Carter,  206  Pa.  St.  491,  56  Atl.  30. 

18  Waller  v.  Howell,  23  Misc.  Eep.  236,  45  N.  Y.  Supp.  790. 

19  Chase  v.  Cheney,  58  111.  509,  11  Am.  Rep.  95. 

20  Walker  v.  Wainwright,  16  Barb.  486. 


559         INJUNCTION;   VOLUNTARY   ASSOCIATIONS.     §§   313,314 

have  nothing  to  do  with  the  charge  of  a  spiritual  of- 
fensa  That  is  an  ecclesiastical  question  purely.  But 
the  inquiry  whether  or  not  the  tribunal  has  been  organ- 
ized in  conformity  with  the  constitution  of  the  church 
is  not  ecclesiastical.  It  is  the  same  question,  and  that 
only,  that  may  arise  with  respect  to  any  voluntary  as- 
sociation, such  as  fraternal  orders  and  social  clubs. 
The  assertion  of  jurisdiction  in  such  a  case  is  not  an  in- 
terference with  the  control  of  the  society  over  its  own 
nienibers;  but,  on  the  contrary,  it  assumes  that  the 
constitution  was  intended  to  be  mutually  binding  upon 
all,  and  it  protects  the  society  in  fact  by  recalling  it 
to  a  recognition  of  its  own  organic  law."^^  There  ap- 
parently is  no  property  right  here,  and  consequently  the 
case  seems  difficult  to  reconcile  with  the  doctrines  laid 
down  above. 

§  313.  Expulsion  from  Other  Societies. — Because  there 
is  no  property  right  involved,  it  has  been  held  that  an 
injunction  will  not  issue  to  restrain  expulsion  from 
a  temperance  society,^^  nor  from  a  purely  political  or- 
ganization.^^ In  both  of  these  cases  the  right  of  mem- 
bership is  entirely  distinct  from  any  right  of  property. 

§  314.  Protection  of  Church  Property  Eights.— While 
equity  is  not  concerned  with  matters  purely  ecclesias- 
tical, it  will  interfere  by  injunction  to  protect  the  ille- 
gal impairment  of  vested  rights  in  church  property. 

21  Hatfield  v.  De  Long,  156  Ind.  207,  83  Am.  St.  Eep.  194,  59  N. 
E.  483,  51  L.  R.  A.  751;  s.  c,  31  Ind.  App.  210,  67  N.  E.  55L  In 
Bonacum  v.  Murphy  (Neb.),  98  N.  W.  1030,  an  injunction  was  s:nd 
to  be  proper  pending  an  appeal  to  a  higher  church  tribunal;  but  see 
s.  c,  104  N.  W.  180. 

22  Hussey  v.  Gallagher,  61  Ga.  86. 

23  Kearns  v.  Howley,  188  Pa.  St.  116,  68  Am.  St.  Eep.  852.  41  Atl. 
273,  42  L.  E.  A.  235;  McKane  v.  Adams,  123  N.  Y.  609,  20  Aiu.  bt. 
Eep.  785,  25  N.  E.  1057. 


9  314  EQUITABLE  REMEDIES.  560 

In  a  leading  case  on  the  subject,  the  questions  which 
may  arise  were  divided  into  three  groups,  viz. : 

"1.  The  first  of  these  is  when  the  property  which  is 
the  subject  of  controversy  has  been,  by  the  deed  or  will 
of  the  donor,  or  other  instrument  by  which  property 
is  held,  by  the  express  terms  of  the  instrument  devoted 
to  the  teaching,  support  or  spread  of  some  specific  form 
of  religious  doctrine  or  belief. 

"2.  The  second  is  when  the  property  is  held  by  a 
religious  congregation  which,  by  the  nature  of  its  or- 
ganization, is  strictly  independent  of  other  ecclesias- 
tical associations,  and  so  far  as  church  government  is 
concerned,  owes  no  fealty  or  obligation  to  any  higher 
authority. 

"3.  The  third  is  where  the  religious  congregation 
or  ecclesiastical  body  holding  the  property  is  but  a 
subordinate  member  of  some  general  church  organh 
ization  in  which  there  are  superior  ecclesiastical  tri- 
bunals with  a  general  and  ultimate  power  of  control 
more  or  less  complete  in  some  supreme  judicatory  over 
the  whole  membership  of  that  general  organization."^* 
The  cases  will  nearly  all  fall  into  this  classification, 
and  therefore  will  be  discussed  according  to  it. 

(1)  The  rule  in  regard  to  the  first  class  is  so  well  ex- 
pressed in  the  same  case  that  it  is  unnecessary  to  add 
to  it.  "In  regard  to  the  first  of  these  classes  it  seems 
hardly  to  admit  of  a  rational  doubt  that  an  individual 
or  an  association  of  individuals  may  dedicate  property 
by  way  of  trust  to  the  purpose  of  sustaining,  support- 
ing and  propagating  definite  religious  doctrines  or  prin- 
ciples, provided  that  in  doing  so  they  violate  no  law 
of  morality,  and  give  to  the  instrument  by  which  their 
purpose  is  evidenced,  the  formalities  which  the  laws 

24  Watson  V,  Jones,  13  Wall.  679,  20  L.  ed.  666. 


561  INJUNCTION;   VOLUNTAEY  ASSOCIATIONS.       §  314 

require.  And  it  would  seem  also  to  be  the  obvioua 
duty  of  the  court,  in  a  case  properly  made,  to  see  that 
the  property  so  dedicated  is  not  diverted  from  the  trust 
which  is  thus  attached  to  its  use.  So  long  as  there 
are  persons  qualified  within  the  meaning  of  the  original 
dedication,  and  who  are  also  willing  to  teach  the  doc- 
trines or  principles  prescribed  in  the  act  of  dedication, 
and  so  long  as  there  is  anyone  so  interested  in  the  exe- 
cution of  the  trust  as  to  have  a  standing  in  court,  it 
must  be  that  they  can  prevent  the  diversion  of  the  prop- 
erty or  fund  to  other  and  different  uses.  This  is  the 
general  doctrine  of  courts  of  equity  as  to  charities,  and 
it  seems  equally  applicable  to  ecclesiastical  matters. "^'^ 
(2)  In  the  second  class,  the  ordinary  rules  as  to  vol- 
untary associations  apply.  The  property  must  be  man- 
aged and  controlled  according  to  the  rules  of  the  or- 
ganization. As  a  general  rule,  the  majority  may  deal 
with  the  property  as  it  sees  fit,  subject  only  to  the  re- 
striction that  the  regular  method  of  procedure  must 
be  followed.  Therefore,  the  majority  may  enjoin  the 
minority  from  unlawful  interference  with  the  church 
property  where  the  ordinary  equitable  rules  permit 
such  a  remedy.^"  But  if  the  majority  attempts  to  act 
without  regard  to  the  rights  of  the  minority,  as  where 
it  attempts  without  authority  to  make  a  change  in  the 
customs  of  the  church  by  installing  an  organ  in  the 
house  of  worship,^^  an  injunction  will  issue  upon  the 
petition  of  the  minority.  Where  the  majority  decides 
upon  a  course  of  action  at  a  meeting  of  which  due  notice 

25  Watson  V.  Jones,  13  Wall.  679,  20  L.  ed.  666.  See,  also.  Cape  v. 
Plymouth  Congregational  Church,  117  Wis.  150,  93  N.  W.  449. 

26  Trustees  etc.  German  Evangelical  Cong.  v.  Hoessli,  13  Wis.  388. 
A  deposed  pastor  m&j  be  enjoined  from  using  the  church  property: 
Morris  St.  Baptist  Church  v.  Dart,  67  S.  C.  338,  100  Am.  St.  Eep.  727, 
45  S.  E.  753. 

27  Hackney  t.  Yawter,  39   Kan.  613,  18  Pac.  699. 

Equitable  Bemedies,  YoL  1—36 


§  315  EQUITABLE  EEMEDIES.  56'-' 

is  not  given,  it  cannot  enjoin  interference  with  such 
plans.^^  The  majority  may  determine  the  rules  of  dis- 
cipline, and  may  expel  members  for  violations  thereof. 
After  such  expulsion,  the  rights  of  the  former  member 
as  to  the  church  property  have  ceased,  and,  therefore, 
he  can  be  enjoined  from  interfering.-'  But,  of  course, 
the  minority  cannot  expel  the  majority,  and  if  such  a 
thing  is  attempted,  the  rights  of  the  majority  in  the 
property  will  be  protected  by  injunction.^'* 

§  315.  Same  — When  Rights  Depend  upon  Decision  of  Su- 
.perior  Church  Tribunal. —  (.3)  In  the  third  class,  where 
the  congregation  is  but  a  subordinate  member  of  some 
general  church  organization,  the  rights  of  any  faction 
to  the  control  of  the  property  depend  upon  the  de- 
cision of  the  church  tribunals.  "Whenever  the  ques- 
tions of  discipline  or  of  faith,  or  ecclesiastical  rule, 
custom  or  law  have  been  decided  by  the  highest  of  these 
church  judicatories  to  which  the  matter  has  been  car- 
ried, the  legal  tribunals  must  accept  such  decisions  as 
final,  and  as  binding  on  them,  in  their  application  to 
the  case  before  them."^^  Therefore,  the  trustees  of 
every  local  church  must  hold  the  property  for  the  use 
of  the  party  decided  by  such  judicatory  to  be  the  real 
representative  of  the  denomination.  In  the  leading 
case  from  which  the  foregoing  abstract  is  taken,  the 
question  arose  as  to  the  respective  rights  of  two  fac- 
tions of  the  Presbyterian  Church.  The  General  As- 
sembly, the  highest  court  of  the  church,  expressed  views 

28  Long  V.  Harvey,  177  Pa.  St,  473,  55  Am.  St.  Rep.  733,  35  Atl. 
869,  34  L.  K.  A.  169. 

29  Shannon  v.  Frost,  42  Ky.  (3  B.  Mon.)  253.  Likewise  an  ex- 
communicated member  cannot  enjoin  diversion  of  property:  Nance  v. 
Busby,  91  Tenn.  303,  18  S.  W.  874. 

30  Bouldin  v.  Alexander,  15  Wall.  131,  21  L.  ed,  69. 

31  Watson  V.  Jones,  13  Wall.  679,  20  L.  ed.  666, 


563  INJUNCTION;   VOLUNTARY  ASSOCIATIONS.       §  315 

on  the  subject  of  slavery,  which  led  to  the  secession  of 
a  large  number  of  members  from  the  Southern  churches. 
The  result  was  a  dispute  as  to  the  rights  to  the  prop- 
erty. The  court  held  that  the  questions  of  discipline 
and  of  slavery,  under  the  circumstances,  were  matters 
of  ecclesiastical  cognizance  alone;  that  the  decision  of 
the  General  Assembly  was  final;  that  therefore  the 
party  acceding  to  its  decision  was  entitled  to  the  prop- 
erty, and  could  enjoin  interference  therewith  by  the 
other  faction.^2 

32  Watson  V.  Jones,  13  Wall.  679,  20  L.  ed.  666.  Similar  questions 
arose  in  a  line  of  decisions  which  for  convenience  may  be  called  the 
United  Brethren  cases.  The  constitution  of  this  religious  organiza- 
tion provided:  "There  shall  be  no  alteration  of  the  foregoing  cbn- 
Btitution  unless  by  request  of  two-thirds  of  the  whole  society." 
"No  rule  or  ordinance  shall  at  any  time  be  passed  to  change  or  do 
away  with  the  confession  of  faith  as  it  now  stands,  nor  to  destroy 
the  itinerant  plan."  At  a  general  conference  it  was  decided  to 
amend  the  constitution  in  such  a  way  as  to  add  to  the  clearness  of 
expression  without  a  change  of  meaning.  The  proposition  was  sub- 
mitted to  the  members  and  was  carried  by  a  vote  of  more  than  two- 
thirds  of  those  voting,  but  not  by  two-thirds  of  all  the  members. 
Thereupon  a  minority  withdrew,  set  up  a  claim  to  be  the  true  church, 
alleged  that  the  majority,  by  its  action,  had  withdrawn,  and  claimed 
the  right  to  control  the  different  congregations.  The  result  was  a 
number  of  injunction  suits  to  determine  the  rights  of  different  congre- 
gations in  the  several  states.  In  some  instances  it  was  held  that 
the  question  whether  the  old  confession  of  faith  had  been  super- 
seded was  ecclesiastical,  that  the  courts  would  not  inquire  into  it, 
and  that  therefore  the  majority  was  entitled  to  the  aid  of  the  court: 
Kuns  V.  Eobertson,  154  111.  394,  40  N.  E.  343;  Brundage  v.  Deardorf, 
92  Fed.  214,  34  C.  C.  A.  304;  Lamb  v.  Cain,  129  Ind.  486,  29  N.  E. 
13,  14  L.  R.  A.  518  (not  an  injunction  case).  In  one  case  it  was  held 
that  the  change  was  valid,  and  that  therefore  the  majority  was  en- 
titled to  an  injunction:  Schlichter  v.  Keiter,  136  Pa.  St,  119,  27  Atl. 
45,  22  L.  E.  A.  161.  And  in  another  it  was  held  that  the  aclion  of 
the  conference  was  legislative  rather  than  judicial;  that  it  was  sub- 
ject to  review;  that  while  the  change  was  illegal,  it  was  not  so  great 
as  to  change  the  identity,  and  that  therefore  the  majority  was  en- 
titled to  control:  Philomath  College  v.  Wyatt,  27  Or.  390,  37  Pac. 
1022,  26  L.  R.  A.  68  (see,  also,  31  Pac.  206).  See  as  to  the  general 
proposition,  Bonacum  v.  Harrington,  65  Neb.  831,  91  N.  W.  886. 


8  315  EQUITABLE  EEMEDIES.  564 

The  action  of  the  supreme  judicatory  being  final  on 
all  such  matters,  it  follows  that  a  determination  by 
such  a  body  of  the  validity  of  the  appointment  of  a 
pastor  cannot  be  questioned  in  an  injunction  suit.'* 
It  is  for  the  church  court  to  determine  upon  the  valid- 
ity of  such  proceedings.^*  And  it  would  seem  the  bet- 
ter rule  to  refuse  an  injunction  to  restrain  a  party 
from  preaching,  for  that  is  a  mere  naked  trespass  f^  but 
there  is  authority  for  such  relief.*' 

ss  Gross  V.  Wieand,  151  Pa.  St.  639,  26  Atl.  50. 
14  Wehmer  v.  Fokenga,  57  Neb.  510,  78  N.  W.  28. 
«5  German  Eyangelical  Luth,  Church  t.  Maschop,  10  N.  J.  Eq.  57. 
»«  Perry  r.  Shipway,  4  De  Gex  k  J.  353;  Cooper  r.  Gordon,  L.  E. 
8  Sq.  24». 


565  INJUNCnONi  MOETGAGOB  AND  MORTGAGEE.       S  316 


CHAPTER  XVI. 


INJUNCTIONS  BETWEEN  MORTGAGOR  AND 
MORTGAGEE. 

ANALYSIS. 

{  316.    Injunction   against   sale   under  power  in  mortgage   or  tm6t 

deed. 
S  317.     Same;  in  case  of  usury. 
S  318.     Same;  payment  by  the  mortgagor,  or  necessity  for  an  account* 

ing. 
§  319.     Injunction  on  behalf  of  the  mortgagee. 
S  320.     Injunctions  relating  to  chattel  mortgages. 

§  316.  Injunction  Against  Sale  Under  Power  in  Mortgage 
or  Trust  Deed. — A  court  of  equity  will  enjoin  the  execu- 
tion of  a  power  of  sale  in  a  mortgage  when  it  appears 
that  the  mortgagee  is  proceeding  in  an  improper  or  op- 
pressive manner,  or  is  perverting  the  power  from  its 
legitimate  purpose;^  as  where,  having  refused  repeated 
tender,  he  files  a  bill  to  foreclose,  dismisses  it  without 
prejudice  when  the  cause  is  ready  for  hearing,  and  ad- 
vertises the  land  for  sale  under  a  power  in  the  mortr 
gage  with  the  avowed  purpose  of  compelling  the  pay- 
ment of  another  claim  which  is  disputed.^  And  in  a 
suit  for  cancellation^  or  redemption*  of  a  mortgage, 
a  motion  f«r  a  temporary  injunction  restraining  the 
exercise  of  a  power  of  sale  may  be  granted,  when  it 
appears    that    less    inconvenience    and    injustice    will 

1  McCalley  v.  Otey,  99  Ala.  584,  42  Am.  St.  Eep.  87,  12  South.  406; 
8.  c,  90  Ala.  302,  8  South.  157;  Struve  r.  Childs,  63  Ala.  473. 

2  McCalley  v.  Otey,  supra. 

3  New  England  Mortg.  Sec.  Co.  v.  Powell,  97  Ala.  483,  12  South. 
55.  See,  also,  Hodge  r.  McMahon,  137  Ala.  171,  34  South.  185 
(chattel  mortgage). 

4  Whitley  y.  Lumber  Co.,  89  Ala.  493,  7  South.  810. 


S  316  EQUITABLE  EEMEDIES.  CGG 

thereby  be  caused  to  the  defendant  than  would  result  to 
the  complainant  from  refusing  the  motion.  A  sale  un- 
der a  mortgage  given  by  a  married  woman  may  be  en- 
joined until  a  hearing  is  had  on  the  question  of  her 
power  to  execute  the  mortgage.^  But  a  sale  under  a 
power  in  a  mortgage  cannot  be  enjoined  upon  the  mere 
ground  that  the  time  of  the  sale  is  unpropitious,  if 
there  is  no  fraud  or  collusion  on  the  part  of  the  mort- 
gagee.® 

Sales  under  trust  deeds  in  the  nature  of  mortgages 
come  under  the  general  jurisdiction  of  equity  to  compel 
trustees  to  perform  their  duties,  and  to  interfere  by  in- 
junction to  restrain  the  improper  exercise  of  their  pow- 
ers. The  trustee,  in  such  cases,  is  the  agent  of  both 
parties,  bound  to  act  impartially  between  them,  and 
ought  of  his  own  motion  to  apply  to  the  court  to  re- 
move an  impediment  to  a  proper  execution  of  the  trust ; 
and  if  he  should  fail  to  do  this,  the  party  injured  by 
his  default  has  a  right  to  make  such  application,  and 
to  enjoin  the  sale  under  the  trust  until  such  impedi- 
ment is  removed^ 

5  Strom  V.  American  Freehold  Land  Mort.  Co.,  42  S.  C.  97,  20  S. 
E.  16. 

6  Warner  v.  Jacob,  L.  E.  20  Ch.  D.  220. 

Injunction  for  the  purpose  of  obtaining  a  set-oflf.—"  Without 
averment  of  insolvency,  or  other  special  equity,  a  power  of  sale  will 
not  be  enjoined  for  the  purpose  of  enabling  the  mortgagor  to  have 
ascertained  and  set  off  against  the  mortgage  debt  an  uncertain  bal- 
ance that  may  be  due  him  on  a  settlement  of  partnership  accounts, 
or  other  claim  in  controversy  between  him  and  the  mortgagee,  thoucjli 
the  cross-demands  may  be  mutual.  Such  is  not  a  case  where  the 
great  and  irreparable  injury  will  result,  which  authorizes  the  court 
to  exercise  its  extraordinary  jurisdiction":  Glover  v.  Hembrec,  82 
Ala.  324,  8  South,  251.  See,  also,  Sidney  Land  &  Colony  Co.  v.  Mil- 
ner,  Caldwell  &  F.  L.  Co,,  138  Ala.  185,  35  South.  48,  where  an  in- 
junction to  prevent  the  sale  for  a  debt  of  $35,000  on  account  of  a 
claim  of  $10,  was  denied. 

T  Hartman  v.  Evans,  38  W.  Va,  669,  18  S.  E,  810,  and  cases  citcfl; 


567  INJUNCTION;  MOETGAGOR  AND  MOETGAGEE.       §  317 

§  317.  Same;  in  Case  of  TJsury. — Relief  by  injunction 
is  freely  granted  to  restrain  the  sale  under  power  in 
a  mortgage  or  trust  deed  of  laud  mortgaged  to  secure 
a  usurious  debt,  until  an  accounting  is  had  of  the 
amount  legally  due.^  It  is  a  familiar  application,  in 
such  cases,  of  the  maxim,  "He  who  seeks  equity  must 
do  equity,"  that  relief  will  be  refused  when  the  mort- 
gagor has  not  paid  or  offered  to  pay  the  amount  of  the 

Iluilson  V.  Barham,  101  Va.  63,  99  Am.  St.  Eep.  849,  43  S.  E.  189. 
Thus,  where  a  trust  deed  was  given  to  secure  tlie  payment  of  the 
purchase-money  of  land,  and  an  adverse  claim  to  the  land  was  after- 
ward discovered,  a  sale  under  the  trust  deed  was  enjoined  until  such 
adverse  claim  should  be  regularly  decided:  Gay  v.  Hancock,  1  Eand. 
(Va.)  72;  Miller  v.  Argyle's  Exr.,  5  Leigh  (Va.),  4C0;  but  see 
Morgan  v.  Glendy,  92  Va.  86,  22  S.  E.  854,  where  the  defendant  of- 
fered to  correct  the  defect  in  the  title.  See,  also,  George  v.  Derby 
Lumber  Co.,  81  Miss.  725,  33  South.  496. 

An  injunction  should  not  issue  on  account  of  defects  in  adver- 
tising, etc.,  when  it  appears  that  the  complainant  could  prevent  a 
Bale  by  paying  the  amount  admitted  to  be  due:  Meetz  v.  Mohr,  141 
Cal.  667,  75  Pac.  298.  In  Smith  v.  Parker,  131  N.  C.  470,  42  S.  E. 
910,  a  temporary  injunction  was  issued  to  restrain  a  sale  under  a 
deed  of  trust  given  by  sureties,  who  claimed  that  they  had  been  re- 
leased by  an  extension  of  time  given  to  the  principal.  In  Dunna- 
way  V.  O'Eeilly  (Mo,  App.),  79  S.  W.  1004,  an  injunction  was  issued 
on  the  ground  that  the  time  had  been  extended  and  that  the  sum 
secured  was  therefore  not  due. 

8  Alston  V.  Morris,  113  Ala.  506,  20  South.  950;  Edmund's  Exrs. 
V.  Bruce,  88  Va.  1007,  14  S.  E.  840;  Marks  v.  Morris,  2  Munf.  (Va.) 
407,  5  Am.  Dec.  481;  Hartman  v.  Evans,  38  W.  Va.  669,  18  S.  E.  810; 
Smith  V.  McMillan,  46  W.  Va.  577,  33  S.  E.  283,  Statutes  in  some 
states  expressly  provide  for  an  injunction  to  prevent  such  sale, 
pending  suit  to  determine  the  existence  of  the  usury:  Code  W.  Va. 
(1891),  c.  96,  p.  713.  Where  the  court,  by  its  final  decree,  ascertains 
the  amount  legally  due,  after  deducting  the  usurious  interest,  and 
orders  a  foreclosure  under  direction  of  the  court  unless  payment 
is  made,  it  is  error  to  dissolve  a  preliminary  injunction  which  had 
been  granted  restraining  a  sale  under  the  power:  Alston  v.  Morris, 
supra.  In  Eorer  v.  Holston  Nat.  B.  &  L.  Assn.  (W.  Va.),  46  S. 
E.  1018,  relief  was  granted  at  suit  of  a  grantor  in  a  trust  deed 
who  had  sold  his  interest  in  the  land. 


S  318  EQUITABLE  EEMEDIES.  568 

principal  and  legal  interest  that  is  due.*  When,  how- 
ever, the  complaint  leaves  the  mortgage  unimpeached, 
to  stand  for  the  full  balance  of  the  principal  lent  upon 
it,  and  legal  interest,  and  seeks  only  to  restrain  the 
sale  of  the  mortgaged  premises  for  a  greater  amount, 
no  tender  is  necessary  of  the  principal  and  interest  ad- 
mitted to  be  equitably  due  on  the  mortgage.^"  It  is 
held  that  the  defense  of  failure  to  make  tender  of  the 
legal  amount,  if  not  taken  advantage  of  by  answer,  will 
be  deemed  to  be  waived.^ ^ 

§  318.  Same;  Payment  by  the  Mortgagor,  or  Necessity  for 
an  Accounting. — Payment  of  the  mortgage  indebtedness 
is  a  sufficient  ground  for  restraining  a  sale  under  the 
power  in  the  mortgage  or  trust  deed  ;^^  or  a  tender  of  the 
amount  to  the  trustee,  followed  by  his  refusal  to  exe- 
cute a  release  in  proper  form,  and  a  payment  of  the 
amount  into  court.^^ 

Where  there  is  a  controversy  as  to  the  amount  due 
on  the  mortgage,  arising  out  of  numerous  transactions 
between  the  parties,  and    an  accounting   is    therefore 

9  Stanley  v.  Gadsby,  10  Pet.  (35  U.  S.)  521,  9  L.  ed.  518;  Ward 
V.  Bank  of  Abbeville,  130  Ala.  597,  30  South.  341.  By  statutes  in 
some  states  all  interest  is  forfeited,  and  payment  of  the  principal 
only  can  be  made  a  condition  of  relief:  Southern  Home  B.  &  L. 
Assn.  V.  Toney,  78  Miss.  916,  29  South.  825.    See  Pom.  Eq.  Jur.,  §  391. 

10  Haggerson  v.  Phillips,  37    Wis.  364. 

11  Price  V.  Empire  Loan  Assn.,  75  Mo.  App.  551. 

12  Dockery  v.  French,  69  N.  C.  308,  under  a  statute  (Maryland, 
Code,  art.  66,  §  16),  providing  that  no  injunction  to  stay  a  sale  of 
mortgaged  property  shall  be  granted  unless  the  party  praying  the 
injunction  shall  on  oath  allege  payment  in  whole  or  in  part,  and  that 
the  mortgagee  refuses  to  credit  the  same,  the  court  has  jurisdiction, 
on  a  bill  to  enjoin  such  sale,  to  determine  not  only  that  the  mort- 
gage debt  was  unpaid,  but  that  the  persons  named  in  the  mortgage 
had  power  to  make  the  sale:  Barrick  v.  Horner,  78  Md.  253,  44  Am. 
Bt.  Rep.  283,  27  Atl.  1111. 

18  Chappell  V.  Clarke,  92  Md.  98,  48  Atl.  36. 


669  INJUNCTION;  MORTGAGOR  AND  MORTGAGEE.       f  319 

necessary  to  ascertain  the  sum  still  due,  a  proper  case 
is  presented  for  an  injunction  to  suspend  the  proposed 
sale  under  the  power  until  the  balance  due  is  ascer- 
tained and  declared  by  a  decree  of  the  court.^*  When 
it  is  found  that  the  debt  due  is  less  than  the  amount 
called  for  by  the  deed  of  trust,  the  court  may,  in  its  dis- 
cretion, either  dissolve  the  injunction  as  to  the  amount 
due,  and  dismiss  the  bill,  or  may  retain  the  case,  and 
have  the  trust  executed  under  its  own  supervision.^^ 

§  319.  Injunction  on  Behalf  of  the  Mortgagee The  jur- 
isdiction to  restrain  waste  of  mortgaged  premises  is 
treated  elsewhere.^®  Injunction  is  sometimes  sought 
to  restrain  a  sale  of  the  mortgaged  property  under  sub- 
sequent liens.  It  is  held  that  a  mortgagee  in  posses- 
sion, whose  mortgage  is  duly  recorded,  cannot  enjoin 
a  sale  under  execution  issued  upon  a  junior  judgment 
against  the  mortgagor,  simply  because  his  mortgage  is 

14  Bridgers  v.  Morris,  90  N.  C.  32;  Capeliart  v.  Biggs,  77  N.  C. 
261;  Purnell  v.  Vaughan,  77  N.  C.  268;  Harrison  v.  Bray,  92  N.  C. 
488;  Faison  v.  Hardy,  114  N.  C.  58,  19  S.  E.  91;  Farmers'  Savings  & 
B.  &  L,  Assn.  V.  Kent,  117  Ala.  624,  23  South.  757;  Henson  v. 
Brooks,  67  Ala.  491;  Martin  v.  Kester,  46  W.  Va.  438,  33  S.  E.  238; 
Sandusky  v.  Faris,  49  W.  Va.  150,  38  S.  E.  563.  In  the  last  case  it 
is  said:  "When,  from  any  cause,  the  amount  due  and  to  be  raised 
from  a  sale  is  uncertain,  such  uncertainty  is  an  impediment  to  the 
proper  execution  of  the  trust,  and  application  may  be  made  by  the 
trustee,  the  grantor,  or  any  of  the  beneficiaries  of  the  trust,  to  a 
court  of  equity  to  have  it  removed.  But,  to  sustain  an  injunction 
upon  the  ground  of  such  uncertainty,  the  complainant  must  suffici- 
ently allege  it,  and,  if  it  be  denied  in  the  answer,  he  must  prove  it." 
In  this  case  the  deed  of  trust  amounted  to  a  general  assignment  for 
the  benefit  of  creditors,  and  the  grantee  was  not  permitted  to  enjoin 
a  sale  thereunder,  because  of  uncertainty  as  to  the  amounts  of  his 
debts,  etc. 

15  Fry  V,  Old  Dominion  B.  &  L.  Assn.,  49  W.  Va.  61,  35  S.  E.  842; 
Crenshaw  v.   Seigfried,   24   Gratt.   272. 

16  See  chapter  XXII.  That  a  mortgagee  in  possession  under  the 
mortgage  may  enjoin  the  removal  of  crops  by  one  claiming  under  the 
mortgagor,  see  Bagnall  v.  Villar,  L.  B.  12  Ch.  D.  812. 


§  320  EQUITABLE  KEMEDIES.  570 

a  prior  lien  upon  the  property;  since  any  sale  under  the 
execution  can  only  pass  the  title  to  the  mortgaged 
property  subject  to  the  mortgage  if  valid.^'^  Whether 
a  prior  mortgagee  whose  mortgage  has  been  canceled 
of  record  by  mistake  is  entitled  to  the  same  relief  against 
a  junior  lienholder  is  a  question  which,  upon  the  au- 
thorities, is  open  to  doubt.^^ 

§  320.  Injunctions  Relating  to  Chattel  Mortgages. — In 
suits  to  restrain  the  foreclosure  of  chattel  mortgages 
the  question  usually  arises  of  the  adequacy  of  the  legal 
remedy  or  defense.  It  has  been  held  that  a  chattel 
mortgagor,  having  both  the  title  to  and  possession  of 
the  mortgaged  property,  may  have  a  temporary  injunc- 
tion to  restrain  its  sale,  without  seizure,  by  the  mort- 
gagee, on  a  complaint  showing  a  tender  rendering  the 
mortgage  null  and  void  ( under  the  terms  of  a  statute) ; 
in  such  case  the  plaintiff,  obviously,  could  neither  bring 
an  action  of  replevin  nor  an  action  for  damages  for 

17  American  Freehold  Land  &  M.  Co.  v.  Maxwell,  39  Fla.  489,  22 
South.  751.  "If  the  real  estate  is  sold,  it  cannot  be  removed,  nor  is 
it  rendered  less  valuable  by  a  rule  under  execution.  If  a  prior  mort- 
gagee were  allowed  to  enjoin  sales  by  subsequent  lienholders,  it 
would,  at  his  election,  as  against  the  demands  of  other  creditors,  place 
in  his  hands  a  perpetual  shield,  and  incase  the  mortgaged  property 
in   impenetrable   armor." 

18  Compare  Merchants'  &  Mechanics'  Bank  v.  Tillman,  106  Ga. 
55,  31  S.  E.  794,  with  Wiedner  v.  Thompson,  66  Iowa,  283,  23  N.  W, 
670. 

Temporary  injunction  against  enforcement  of  a  subsequent  tax  lien. 
In  Allison  v.  Corson,  88  Fed.  581,  32  C.  C.  A,  12,  a  first  mortgagee 
brought  an  action  to  enjoin  the  assignee  of  a  tax  certificate  from 
taking  a  deed  to  the  mortgaged  premises,  alleging  that  the  taxes, 
a  part  of  which  were  illegal,  were  levied  after  his  mortgage  was 
made;  that  until  after  the  hearing  in  a  suit  to  foreclose  his  mort- 
gage, to  which  the  second  mortgagee  was  a  party,  the  certificate  was 
held  by  the  second  mortgagee,  and  then  assigned.  It  was  held  that, 
it  not  being  clear  that  the  complainant  might  not  succeed  upon  the 
merits,  a  temporary  injunction  should  issue  pending  the  final  hearing. 


571  INJUNCTION;  MORTGAGOR  AND  MORTGAGEE.       §  320 

an  nnlawfiil  seizure  of  the  property.'®  On  the  other 
hand,  one  Avho  has  obtained  the  legal  title  to  the  mort- 
gaged chattels  cannot  enjoin  a  sale  on  foreclosure  by  a 
mortgagee  who  is  in  possession  of  them,  for  the  purpose 
of  testing  the  validity  of  the  mortgage,  since  the  com- 
plainant has  a  full  remedy  by  action  of  replevin  or 
tort  f^  and  a  mortgagor  who  is  sued  in  replevin  for  the 
recovery  of  mortgaged  property  for  the  purpose  of  fore- 
closure may  in  such  action  interpose  any  defense  to  the 
mortgage  debt,  such  as  usury,  and  cannot,  therefore, 
maintain  an  independent  suit  to  enjoin  the  foreclos- 
ure.^' Where  a  chattel  mortgage  gives  the  mortgagee 
the  right  to  take  possession  and  sell  the  property  at  any 
time  when  he  feels  insecure,  such  sale  will  not  be  en- 
joined.2^ 

Where  the  chattel  mortgage  does  not  transfer  the 
right  to  the  immediate  possession  of  the  mortgaged 
property,  the  mortgagee,  pending  foreclosure,^^  or  even 
before  the  mortgage  debt  is  due,  may,  as  against  the 
mortgagor  or  purchasers  from  him  with  notice  or  with- 
out consideration,  restrain  by  injunction  the  destruc- 
tion or  disposal  of  the  mortgaged  chattels,  their  re- 
moval from  the  jurisdiction,  and  other  acts  done,  with 
a  view  to  defeating  his  lien.'^*     The  mortgagor,  how- 

19  Seabrook  v.  Mostowitz,  51  S.  C.  433,  29  S.  E.  202.  See,  also, 
that  a  chattel  mortgagor  in  possession,  on  a  complaint  alleging  that 
nothing  is  due  on  the  mortgage,  may  have  an  injunction  against  fore- 
closure by  extra-judicial  proceedings:  B^dgett  v.  Frick,  28  S.  C,  176, 
5  S.  E.  355;  Mayrant  v.  Dickerson,  Rich.  Eq.  Gas.  (S.  C.)  201. 

20  Jersey  City  Milling  Co.  v.  Blackwell,  58  N.  J.  Eq.  122,  44  AtL 
153,   49   Cent.   L.   J.  441. 

21  Treanor  v.  Sheldon  Bank,  90  Iowa,  575,  58  N.  W.  914. 

22  Cline  V.  Lfbby,  46  Wis.  123,  32  Am.  Rep.  700,  49  N.  W.  832. 

23  Schoonover  v.  Condon,  12  Wash.  475,  41  Pac.  195. 

24  Walker  v.  Eadford,  67  Ala.  446;  Clagett  v.  Salmon,  5  Gill  &  J. 
(Md.)  314;  Bank  of  Ukiah  v,  Moore,  106  Cal.  673,  39  Pac.  1071;  Mc- 
Cormick  v.  Hartley,  107  Ind.  248,  6  N.  E.  357  (to  restrain  foreclosura 


§  320  EQUITABLE  REMEDIES.  572 

ever,  is  not  to  be  thus  hindered  in  the  legitimate  use  ot 
the  property;  and  a  mere  temporary  removal  of  the 
property  out  of  the  state,  accompanied  by  an  honest  in- 
tention to  return  it  before  the  law  day  of  the  mortgage, 
and  without  any  intention  to  affect,  embarrass,  or  im- 
pair the  rights  of  the  mortgagee,  will  not  authorize  an 
injunction  to  prevent  the  removal  of  the  property .^'^ 
In  Iowa  it  is  held  that  one  chattel  mortgagee  cannot 
enjoin  the  foreclosure  of  another  chattel  mortgage, 
whether  prior  or  subsequent,  as  the  legal  remedies  are 
adequate.*' 

of  mortgage  subsequent  to  plaintiff 'b,  executed  in  frand  of  mort- 
gagor's creditors),  citing  Pom.  Eq.  Jur.,  §  1345. 

25  Walker  v.  Radford,  supra. 

26  McCormick  Harvesting  Machine  Co.  r.  De  La  Mater,  114  Iowa, 
382,  86  N.  W.  365;  Eankin  v.  Eankin,  67  Iowa,  322,  25  N.  W.  263. 


673  INJUNCTION;    PUBLIC    OFFICEKa  S  321 


CHAPTER  XVII. 


INJUNCTIONS  AGAINST  PUBLIC  OFFICEES. 

ANALYSIS. 

§  321.  Public  officers — In  general. 

§  322.  Same — When  relief  granted. 

§  323.  Same — When  not  granted. 

§  324.  Political    acts. 

§  325.  Federal    officers. 

§  326.  State  officers — Tax-payers'  suits. 

§  327.  No  relief  when,  in  effect,  against  state. 

§  328.  Injunctions   against   executive   officera 

f  329,  Discretionary  acts. 

§  330.  Suits  by  officers  against  other  officers. 

§  331.  Elections. 

§  332.  Same — Continued. 

§  333.  Title  to  public  office. 

§  334.  Same — Continued. 

§  335.  Possession  of  office  protected. 

§  336.  Payment  of  salaries. 

§  337.  Removal  of  officers. 

§  338.  Action  of  de  facto  officers. 

§  321.  Public  Officers — In  General. — ^In  general,  a  public 
ofllcermaybe  restrained,  in  a  case  coming  under  some 
recognized  head  of  equity  jurisdiction,  from  acting  il- 
legally to  the  injury  of  individuals.  The  mere  fact 
that  he  is  an  oflBcer  and  is  acting  illegally,  is  not  suf- 
ficient to  warrant  equitable  interference.^     There  must, 

1  This  rule  is  well  stated  in  People  v.  Canal  Board,  55  N.  Y.  390: 
"A  court  of  equity  exercises  its  peculiar  jurisdiction  over  public 
officers  to  control  their  action  only  to  prevent  a  breach  of  trust  af- 
fecting public  franchises,  or  some  illegal  act  under  color  or  claim  of 
right  affecting  injuriously  the  property  rights  of  individuals.  A 
court  of  equity  has,  as  such,  no  supervisory  power  or  jurisdiction 
over  public  officials  or  public  bodies,  and  only  takes  cognizance  of 
actions    against    or    concerning    them   when    a   case    is   made   coming 


i  322  EQUITABLE  EEMEDIES.  574 

in  addition,  be  an  injury  to  a  property  right  of  the 
party  applying  for  relief.  Equity  does  not  concern  it- 
self with  political  affairs,  as  such. 

§  322.  Same — When  Relief  Granted. — When  a  violation 
of  a  plain  official  duty,  requiring  no  exercise  of  discre- 
tion, is  threatened,  one  who  will  sustain  injury  thereby, 
for  which  adequate  compensation  cannot  be  had  at  law, 
may  have  an  injunction  to  prevent  it.^  Therefore, 
when,  in  such  a  case,  there  is  irreparable  injury  and  no 
adequate  remedy  at  law,  an  injunction  is  proper.  Thus, 
it  will  issue  to  restrain  a  board  of  pilot  commissioners 
from  icYoking  a  license  for  an  act  which  the  statute 
does  not  make  cause  for  forfeiture;^  or  to  restrain  an 
insuiance  commissioner  from  illegally  refusing  a  li- 
cense to  do  business  in  the  state,  when  the  statute  does 

within  one  of  the  acknowledged  heads  of  equity  jurisdiction.  To 
entitle  plaintiff  to  prohibition  by  injunction  from  a  court  of  equity, 
either  provisional  or  perpetual,  he  must  not  only  show  a  clear  legal 
and  equitable  right  to  the  relief  demanded  or  to  some  part  of  it, 
and  to  which  the  injunction  is  essential,  but  also  that  some  act  ia 
being  done  by  the  defendant,  or  is  threatened  and  imminent,  which 
will  be  destructive  of  such  right,  or  cause  material  injury  to  him. ' ' 
In  La  Chapelle  v.  Bubb,  69  Fed.  481,  however,  a  contrary  doctrine 
seems  to  be  laid  down.  The  court  in  that  case  said:  "Under  ordi- 
nary circumstances  this  court  would  not  grant  an  injunction  to  pre- 
vent a  trespass;  but  the  defendant  Bubb  justifies  his  proposed  ac- 
tion on  the  ground  that  he  is  an  officer  of  the  United  States  gov- 
ernment, acting  only  in  obedience  to  orders  from  his  superior  offi- 
cers in  the  Indian  department,  and  for  that  reason,  I  deem  it  entirely 
proper  to  restrain  him  from  committing  a  tort  while  assuming  to 
act  in  his  official  capacity." 

2  Louisiana  Board  of  Liquidation  v.  McComb,  92  U.  S.  531,  23  L. 
ed.  623;  Mizner  v.  School  District  (Neb.),  &6  N.  W.  128;  Trustees 
of  Burroughs  School  Dist.  v.  Board  of  Control,  62  S.  C.  68,  39  S.  E. 
793.  In  School  Township  v.  Wiggins,  122  Iowa,  602,  98  N.  W.  490, 
a  school  township  was  allowed  to  maintain  the  action.  See,  also. 
School  Dist.  No.  44  v.  Turner,  13  Okla.  71,  73  Pac.  952. 

3  Morris  v.  Board  of  Pilot  Commissioners,  7  Del.  Ch.  136,  30  Atl, 
667. 


575  INJUNCTION;    PUBLIC    OFFICERS.  §  322 

not  give  an  absolute  discretion;^  or  to  restrain  a  state 
board  of  health  from  interfering  with  one  in  the  prac- 
tice of  his  profession  as  an  osteopath,  when  such  board 
has  no  jurisdiction.^  Likewise,  it  is  proper  where 
health  officers  impose  unlawful  quarantine  regulations, 
the  property  right  in  such  a  case  being  the  right  to 
travel  to  different  parts  of  the  state  ;^  or  where  a  post- 
master improperly  refuses  to  deliver  mail  to  the  com- 
plainant;'^ or  where  the  Secretary  of  the  Interior  at- 
tempts without  authority  to  annul  the  action  of  his 
predecessor  in  approving  the  location  of  a  railroad's 
right  of  way  over  the  public  lands  ;^  or  where  a  state 
official  attempts  to  deprive  an  individual  of  his  real 
property  without  due  process  of  law  under  an  uncon- 
stitutional enactment.®  And  in  general,  whenever  such 
acts  will  do  great  harm  to  the  plaintiff's  business,^"  or 
make  him  liable  to  heavy  penalties,  he  is  entitled  to  this 
relief.^  ^ 

An  injunction  is  the  proper  remedy  when  wrongful 
acts,  involving  no  discretion,  amount  to  a  trespass 
which  is  either  continuous  in  its  nature  or  of  such  a 
character  as  to  be  a  permanent  injury  to  the  freehold.^^ 

4  Mutual  Life  Ins.  Co.  v.  Boyle,  82  Fed.  705.  It  may  likewise  is- 
sue to  restrain  him  from  compelling  the  use  of  a  uniform  policy,  in 
excess  of  authority:  Phenix  Ins.  Co.  v.  Perkins  (S.  D.),  101  N.  W. 
1110. 

5  Nelson  v.  State  Board  of  Health,  108  Ky.  769,  22  Ky.  Law  Hep. 
438,  57  S.  W.  501,  50  L.  E.  A.  383. 

6  Wong  Wai  v.  Williamson,  103  Fed.  1. 

7  Fairfield  Floral  Co.  v.  Bradbury,  87  Fed.  415. 

8  Noble  V.  Union  Eiver  Logging  R,  Co.,  147  U.  S.  165,  13  Sup.  Ct. 
271. 

9  Davis  V,  Gray,  16  Wall.  203,  21  L.  ed.  447. 

10  Cotting  V.  Kansas  City  Stock  Yards  Co.,  82  Fed.  850;  Union 
Terniinal  R.  Co.  v.  Board  of  R.  R.  Commrs.,  54  Kan,  352,  38  Pac. 
290. 

11  Brigrgs  V.  Buckingham,  6  Del.  Ch.  267,  23  Atl.  858;  Van  Lear  v. 
Eisele,  126  Fed.  823;  Buster  v.  Wright   (Ind.  Ter.),  69  S.  W.  882. 

12  Ryan  V.  Brown,  IS  Mich.  196,  100  Am.  Dec.  154;  Raleigh  v. 
Goshens,   [1898]    1   Ch.   73. 


§  323  EQUITABLE  BEMEDIES.  576 

Thus,  where  inspectors  acting  under  a  claim  of  right  ex- 
ceed their  powers  in  providing  for  the  drainage  of 
swamp  lands/^  or  where  canal  commissioners  threaten 
to  make  an  illegal  appropriation  of  land  for  canal  pur- 
poses, an  injunction  will  issue.^*  It  will  also  issue 
when  the  illegal  acts  amount  to  a  nuisance,^ '^  cast  a 
cloud  upon  the  title  to  real  estate^®  or  will  necessitate 
a  multiplicity  of  suits.^'^  Thus,  where  a  failure  to  obey 
an  order  unauthorized  and  void  would  subject  a  plain- 
tiff in  his  daily  business  to  large  numbers  of  individual 
actions  and  heavy  penalties,  an  injunction  is  the  only 
efficacious  remedy.^  ^  Likewise,  it  has  been  held  in  the 
federal  courts  that  when  a  state  insurance  commissioner 
by  an  unauthorized  act  attempts  to  keep  a  great  num- 
ber of  companies  out  of  the  state,  an  injunction  is 
proper  because  of  the  great  number  of  suits  which  would 
be  necessary  at  law.^* 

§  323.    Same — When  not  Granted An  injunction  will 

not  be  granted,  however,  where  the  case  is  not  brought 
under  some  recognized  head  of  equity  jurisdiction,^** 
nor  where  there  is  a  complete  and  adequate  remedy  at 
law.^^     Thus,  it  will  be  refused  where  there  is  an  ade- 

13  Belknap  v.  Belknap,  2  Johns.  Ch.  463,  7  Am.  Dec.  648i, 

14  McArthur  v.  Kelly,   5   Ohio,   139. 

15  Sels  V.  Greene,  88  Fed.  129. 

16  Kirwan  v.  Murphy,  83  Fed.  275,  28  C.  C.  A.  348. 

17  Kirwan  v.  Murphy,  83  Fed.  275,  28  C.  C.  A.  348;  Pacific  Ex- 
press Co.  V.  Cornell,  59  Neb.  364,  81  N.  W.  377. 

18  Dinsmore  v.  Southern  Express  Co.,  92  Fed.  714. 

19  Liverpool  &  London  &  Globe  Ins.  Co.  v.  Clunie,  88  Fed.  160. 

20  Balogh  V.  Lyman,  6  App.  Div.  271,  39  N.  Y.  Supp.  780. 

21  It  is  believed  that  this  statement  is  borne  out  by  the  cases  cited 
in  illustration.  However,  it  has  been  held  that  an  injunction  will 
issue  to  restrain  a  trespass  by  a  public  officer  acting  under  a  claim 
of  right  in  cases  where  it  will  not  issue  against  individuals:  La 
Chapelle  v.  Bubb,  69  Fed.  481;  Eyan  v.  Brown,  18  Mich.  196,  100  Am, 
Dec.  154  (dictum). 


677  INJUNCTION;    PUBLIC    OFFICEES.  S  323 

quate  remedy  by  mandamus,^^  as  where  a  county  clerk 
denies  a  searcher  of  records  access  to  the  records  of  a 
particular  title.^^  Likewise,  it  will  be  refused  where 
full  relief  can  be  obtained  by  certiorari.^*  And  in 
many  cases  ample  satisfaction  can  be  obtained  in  a  suit 
to  recover  damages.^^  Thus,  where  an  inspector,  act- 
ing under  an  unconstitutional  law,  threatens  to  sell 
oyster  grounds  for  non-payment  of  rent,^^  or  where  a 
commissioner  of  highways  unlawfully  threatens  to  re- 
move a  house  encroaching  on  a  highway ,2^  there  is  said 
to  be  an  adequate  remedy  at  law,  and  equitable  relief 
will  be  refused.  Mere  unconrtitutionality  affords  no 
ground  for  such  relief.^®  Again,  an  injunction  will 
not  issue  to  prevent  the  misappropriation  of  money  by 
an  officer  of  another  court,  for  ordinarily  there  is  an 
adequate  remedy  there.^^ 

It  is  necessary  to  show  irreparable  injury  to  a  sub- 
stantial property  right,  and  if  such  injury  is  not  clearly 
made  out,  relief  will  be  refused.^*^  Therefore,  when  it 
is   not   apparent   that   irreparable   injury   will    result 

22  Nassau  Electric  K.  Co.  v.  White,  12  Misc.  Kep.  631,  34  N.  Y. 
Snpp.  960;  Barber  v.  West  Jersey  Title  &  Guar.  Co.,  S3  N.  J.  Eq. 
358,  32  Atl.  222,  371;  Coquard  v.  Indian  Grave  Drainage  Dist.,  69 
Fed.  867,  16  C.  C.  A.  530,  34  U.  S.  App.  169. 

23  Barber  v.  West  Jersey  Title  &  Guar.  Co.,  53  N.  J.  Eq.  158,  32 
Atl.  222,  371. 

24  Pennsylvania  E.  Co.  v.  N.  D.  &  N.  J,  J.  C.  Ey,  Co.,  56  Fed. 
697. 

25  Coquard  v.  Indian  Grave  Drainage  Dist.,  69  Fed.  867,  16  C.  C. 
A.  530,  34  U.  S.  App.  169. 

26  Thomas  v.  Eowe  (Va.),  22  S.  E.  157. 

27  Flood  V.  Van  Wormer,  147  N.  Y.  284,  41  N.  E.  569,  affirming 
70  Hun,  415,  24  N.  Y.  Supp.  460. 

28  State  ex  rel.  Kenamore  v.  Wood,  155  Mo.  425,  56  S.  W.  474,  48 
L.  E.  A.  596;  People  v.  District  Court,  29  Colo.  182,  68  Pac.  242. 

29  Johnson  v.  Gilmer,  113  Ga.  1146,  39  S.  E.  469. 

30  Seccomb  v.  Wurster,  83  Fed.  856;  Business  Men  a  League  v. 
Waddill,  143  Mo.  495,  45  S.  W.  262,  40  L.  E.  A.  501. 

Equitable  Eemedies,  Vol.  1—37 


I  324  EQUITABLE  REMEDIES.  578 

therefrom,  an  injunction  will  not  issue  to  restrain  a 
board  from  taking  testimony  preparatory  to  fixing  tele- 
phone rates,^^  nor  to  restrain  a  board  of  arbitration 
from  hearing  a  dispute  when  its  jurisdiction  is  ques- 
tioned,^^  nor  to  prevent  the  enforcement  of  a  statute 
regulating  street-car  fares.^^  Again,  where  it  is  doubt- 
ful whether  any  injury  whatever  will  result,  no  relief 
will  be  granted.^^ 

Where  the  legality  of  the  officer's  action  is  doubtful, 
but  it  is  not  clearly  illegal,  a  court  of  equity  will  not 
interfere.^^  Therefore,  an  injunction  will  not  issue  to 
prevent  interference  with  Sunday  baseball  games,  when 
the  legality  of  such  games  is  in  doubt.^®  And  even 
though  the  officer  may  be  exceeding  his  authority,  a 
party  who  does  not  come  into  court  with  clean  hands 
will  be  refused  relief.^'^  When  an  injunction  against 
an  officer  will  be  really  against  another  individual,  it 
will  not  be  granted  until  such  other  party  is  brought 
into  court.^^  It  is  also  held  that  an  injunction  will  be 
denied  when  the  injury  to  the  people  in  general  from 
its  issuance  will  overshadow  the  benefit  to  the  com- 
plainants.^* 

§  324.  Political  Acts. — As  equity  deals  with  property 
rights  alone,  an  injunction  will  not  issue  to  restrain 

31  Nebraska  Tel.  €o.  v.  Cornell,  58  Neb.  823,  80  N.  W.  43. 

32  N.  O.  City  &  L.  R.  Co.  v.  State  Board  of  Arbitration,  47  La. 
Ann.  874,  17  South.  418. 

33  Ahern  v.  Newton  &  B.  St.  Ey.  Co.,  105  Fed.  702. 

34  New  York  Cent.  &  H.  E.  E.  Co.  v.  Haffen,  90  Hun,  260,  35  N.  Y. 
Supp.  806. 

35  Glaze  V.  Bogle,  97  Ga.  340,  22  S.  E,  969. 

86   Capital   City  v.  Police   Commissioners,  9  Misc.  Eep.  189,  29    N. 
Y.  Supp.  804. 

37  Weiss  V.  Herlihy,  23  App.  Div.  608,  49  N.  Y.  Supp.  81. 

38  Union  Terminal  E.  Co,  v.  Board  of  R.  E.  Commrs.,  52  Kan.  680, 
35    Pac.  224. 

30  People  V.  District  Court,  29  Colo.  182,  68  Pac.  242. 


579  INJUNCTION;   PUBLIC  OFFICERS.  §§  325,  326 

political  acts  of  public  ofiQcers.  Thus,  the  Secretary 
of  War  will  not  be  enjoined  from  taking  action  which 
might  destroy  the  government  of  a  state,  for  only  a 
political  question  is  involved.^^  Likewise,  a  Secretary 
of  State  will  not  be  enjoined  from  issuing  a  city 
charter;**  nor  will  an  injunction  issue  in  that  class  of 
cases,  considered  later,  where  title  to  office  or  questions 
relating  to  elections  are  involved.*^  This  rule  prevails 
although  a  state  by  its  election  law  deprives  a  person 
of  rights  to  vote  guaranteed  by  the  fifteenth  amend- 
ment.*^ 

§  325.  Federal  Officers — An  injunction  cannot  be  is- 
sued by  a  state  court  to  restrain  a  federal  officer  or 
any  subordinate  in  the  discharge  of  his  duties  as  a 
government  officer.**  To  allow  such  a  jurisdiction 
would  result  in  conflict  between  the  state  and  federal 
authorities.  It  might  result  in  an  army  officer,  for  in- 
stance, being  dismissed  from  the  service  if  he  refused  to 
obey  the  commands  of  his  superiors,  or  being  thrown 
into  a  county  jail  for  contempt  if  he  did  obey. 

§  326.  State  Officers — Tax-payers'  Suits.— The  right  of  a 
tax-payer  to  enjoin  acts  of  an  officer  of  a  municipal  cor- 
poration which  involve  waste  and  improper  expenditure 

40  Georgia  v.  Stanton,  6  Wall.  50,  18  L.  ed.  721. 

41  Larcom  v.  Olin,  160  Mass.  102,  35  N.  E.  113. 

42  Tupper  V.  Dart,  104  Ga.  179,  30  S.  E.  624;  State  v.  Gibbs,  13 
Fla.  55,  7  Am,  Eep.  233;  Hardesty  v.  Taft,  23  Md.  513,  87  Am.  Dec. 
384;  Melody  v.  Goodrich,  70  N.  Y,  Supp.  568,  35  Misc.  Rep.  138. 

43  Green  v.  Mills,  69  Fed.  852,  16  C.  C.  A.  516,  30  L.  E.  A.  90; 
Gowdy  V.  Green,  69  Fed.  865.  And  equity  will  not  compel  an  officer 
to  place  an  applicant's  name  upon  the  polling  list:  Giles  v.  Harris, 
189  U.  S.  475,  23  Sup.  Ct.  639,  47  K  ed.  909. 

44  In  re  Turner,  119  Fed.  231,  applying  the  principle  laid  down  in 
In  re  Neagle,  135  U.  S.  1,  10  Sup.  Ct.  658,  34  L.  ed.  55,  and  in  Ohio 
V.  Thomas,  173  U.  S.  276,  19  Sup.  Ct.  453,  43  L.  ed.  699.  See,  aiso. 
Sheriff  v.  Turner,  119  Fed.  782. 


S  32G  EQUITABLE  REMEDIES.  580 

of  public  funds  is  considered  in  the  chapter  on  Munic- 
ipal Corporations.  A  different  question  arises,  how- 
ever, when  a  tax-payer  seeks  to  enjoin  a  state  ofiQcer. 
"The  principle  upon  which  the  doctrine  in  regard  to 
municipal,  or  quasi  municipal,  corporations  is  based, 
flows  from  its  analogy  to  a  well-settled  doctrine  in 
equity  governing  private  corporations,  where  each  stock- 
holder has  an  interest  in  the  property  of  the  corpora- 
tion, and  may  interfere  to  protect  the  corporate  funds 
from  the  illegal  or  fraudulent  acts  of  its  officers.  But 
this  reasoning  cannot  apply  to  a  state  government. 
The  county  is  a  quasi  corporation ;  the  state  is  a  sov- 
ereignty. The  county  only  possesses  such  powers  as 
the  legislature  of  the  state  confers  upon  it.  Its  rev- 
enues, its  property,  its  very  existence,  depend  upon 
statutory  enactment.  It  can  be  enlarged,  dismembered, 
or  annihilated,  at  the  will  of  the  state.  The  state,  on 
the  contrary,  has  all  the  powers  not  relinquished  to  the 
general  government  by  the  articles  of  federation  and, 
subject  to  these  relinquishments,  its  sovereignty  is  su- 
preme. One  of  the  necessary  attributes  of  sovereignty 
is  the  protection  of  the  sovereign  power  and  the  main- 
tenance of  the  state  organization."^^  Hence  it  would 
seem  that  an  injunction  should  not  issue  against  a  state 
officer  unless  some  special  and  direct  injury  to  the  plain- 
tiff is  shown.^^     It  is  clear  that  it  should  not  issue  to 

45  Jones  V.  Eeed,  3  Wash.  57,  27  Pac.  1067. 

46  Gibbs  V.  Green,  54  Miss.  592;  Thompson  v.  Canal  Fund  Comnirs., 
2  Abb.  Pr.  248;  City  of  Tacoma  v.  Bridges,  25  Wash.  221,  65  Pac. 
186.  See,  also,  Taylor  v.  Montreal  Harbor  Commrs.,  17  Eap.  Jud. 
Que.  C.  S.  275.  In  Commissioners  of  Barber  Co.  v.  Smith,  48  Kan. 
331,  29  Pac.  565,  the  rule  as  to  county  officers  is  laid  down  as  fol- 
Iowb:  "This  court  has  always  held  that,  before  a  private  citizen  can 
be  allowed  to  maintain  an  action  of  this  character,  he  must  allegis 
and  show  some  interest,  personal  and  peculiar  to  himself,  that  is 
not  shared  by  or  does  not  affect  the  general  public;  and  it  is  not 
enough   that   his   damages   are   greater   than   those   sustained   by   the. 


S81  INJUNCTION;    PUBLIC    OFFICEKS.  i  327 

restrain  state  oflScers  from  erecting  a  public  building 
at  a  place  other  than  that  prescribed  by  law,  where  no 
special  injury  is  shown  and  the  burden  of  taxation  is 
not  increased;*"^  nor  to  restrain  a  state  grain  inspector 
from  employing  deputies  under  an  unconstitutional 
law,  when  this  is  not  shown  to  cause  any  injury  to  the 
plaintiff.^^  As  in  the  case  of  purely  municipal  cor- 
porations, however,  the  rules  are  not  in  harmony.  In 
Pennsylvania,  for  instance,  it  is  held  that  the  governor 
may  be  enjoined  from  enforcing  a  law  exempting  a 
railroad  from  taxation  and  thus  increasing  the  burden 
upon  other  tax-payers.^* 

§  327.  No  Relief  When,  in  Effect,  Against  State. — The 
eleventh  amendment  to  the  federal  constitution  denies 
to  individuals  the  right  to  sue  a  state.  Consequently, 
when  a  bill  for  an  injunction  against  a  public  officer  is 
in  effect  a  suit  against  a  state,  and  no  statute  authorizes 
such  suit,  relief  will  be  denied.  In  determining  whether 
the  state  is  a  party,  the  courts  will  look  beyond  the 
parties  to  the  record  and  decide  according  to  the  real 
effect^*     "Where  it  is  manifest  upon  the  face  of  the 

general  public,  thus  differing  only  in  degree,  but  they  must  be  differ- 
ent in  kind." 

Under  the  New  York  statute,  it  is  held  that  a  tax-payer's  suit  can- 
not be  maintained  against  a  state  officer:  Hutchinson  v.  Skinner,  21 
Misc.  Eep.  729',  49  N.  Y.  Supp.  360. 

47  Sherman  v.  Bellows,  24  Or,  553,  34  Pac.  549;  State  v.  Lord,  28 
Or.  498,  43  Pac.  471,  31  L.  B.  A.  473;  State  v.  Pennoyer,  23  Or,  205, 
37  Pac.  906,  41  Pac.  1104,  25  L.  E.  A,  862. 

48  Birmingham  v,  Cheetham,  19  Wash.  657,  54  Pac.  37. 

49  Mott  V.  Pennsylvania  E,  Co.,  30  Pa,  St.  (6  Casey)  9,  72  Am.  Dec. 
6G4.  And  apparently  a  tax-payer's  suit  against  a  state  officer  may 
be  maintained  in  Illinois:  Burke  v.  Snively,  208  111.  328,  70  N.  E. 
327, 

50  See  Manchester  Fire  Ins.  Co.  v.  Herriott,  91  Fed.  711.  A  good 
illustration  is  found  in  suits  to  enjoin  state  officers  from  prosecut- 
ing violators  of  state  statutes.     The  state  is  said  to  be  the  real  party 


S  327  EQUITABLE  EEMEDIES.  682 

record,  that  the  defendants  have  no  individual  interest 
in  the  controversy,  and  that  the  relief  sought  against 
them  is  only  in  their  official  capacity  as  representatives 
of  the  state,  which  alone  is  to  be  affected  by  the  judg- 
ment or  decree,  the  question  then  arising  whether  the 
suit  is  not  substantially  a  suit  against  the  state,  is  one 
of  jurisdiction."^^  ''It  is  not  enough  that  the  state 
should  have  a  mere  interest  in  the  vindication  of  her 
laws,  or  in  their  enforcement  as  affecting  the  public  at 
large,  or  as  they  affect  the  rights  of  individuals  or  cor- 
porations, but  it  must  be  an  interest  of  value  to  her- 
self as  a  distinct  entity, — of  value  in  a  material  sense. "^^ 
In  case  of  contracts,  moreover,  the  acts  of  the  officers 
are  wrongful  only  as  they  are  considered  to  be  the  acts 
of  the  state.  As  individuals,  the  officers  are  not  capable 
of  committing  a  breach,  for  they  are  not  parties  to  the 
contract.^^  The  state,  therefore,  is  clearly  the  real 
party  in  interest. 

In  accordance  with  these  principles,  it  has  been  held 
that  an  injunction  will  not  issue  against  the  executive 
officer  of  a  state  in  order  to  give  relief  to  bondholders 
who  claim  that  the  state  has  not  lived  up  to  its  agree- 
ment;^* nor  to  restrain  a  state  officer  from  carrying 
out  a  contract  made  in  the  name  of  the  state.^^  But, 
on  the  other  hand,  where  officers  acting  under  an  un- 
constitutional law  will  injure  substantial  property 
rights,  an  injunction  will  not  be  refused  merely  because 

in  interest:  Union  Trust  Co.  v.  Stearns,  119  Fed,  790;  Arbuckle  v- 
Blackburn,  113  Fed,  616,  51  C,  C.  A.  122. 

51  Ex  parte  Ayers,  123  U,  S,  443,  8  Sup.  Ct.  164,  31  L,  ed.  216, 

52  McWhorter  v,  Pensacola  &  A.  E,  R.  Co,,  24  Fla,  417,  12  Am.  St. 
Rep.  220,  3  South.  129,  2  L.  R  A.  508. 

53  Ex  parte  Ayers,  123  U.  S,  443,  8  Sup.  Ct.  164,  31  L.  ed,  216, 

54  Louisiana    v.    Jumel,   107    U.   S.  711,  2   Sup.  Ct.  128,  27  L.   ed. 
448. 

65  Peeples  v.  Byrd,  98  Ga.  688,  25  S,  E.  677. 


583  INJUNCTION;    PUBLIC    OFFICERS.  S  328 

they  are  state  ojQBicers  f^  and  tlie  same  is  true  when  they 
threaten  to  act  in  excess  of  authority.'^'^ 

§  328.  Injunctions  Against  Executive  Officers. — An  in- 
junction will  not  issue  against  an  executive  officer  of 
the  government,  nor  against  one  acting  under  him,  to 
restrain  the  performance  or  execution  of  administrative 
acts  and  orders  within  the  scope  of  his  authority.  This 
is  based  upon  the  principle  which  governs  also  the  legal 
remedy  of  mandamus.  It  would  be  contrary  to  our 
theory  of  government  for  the  judicial  department  to  in- 
terfere with  the  reasonable  discretion  of  the  executive. 
Hence,  courts  of  law  and  of  equity  refuse  the  remedies 
of  mandamus  and  injunction  when  they  will  have  the 
effect  of  controlling  a  reasonable  discretion.  Where  no 
question  of  discretion  is  involved,  both  law  and  equity 
will  interfere  without  hesitation.  It  is  generally  stated 
•that  mandamus  may  issue  in  a  proper  case  to  compel 
the  performance  of  a  ministerial  act.  The  correspond- 
ing statement  as  to  injunction  is  that  it  may  issue  in  a 
proper  case  to  restrain  an  act  in  excess  of  the  officer's 
authority. 

In  accordance  with  these  principles,  it  is  held  that  an 
injunction  will  not  issue  to  restrain  the  Secretary  of 
the  Interior  or  the  Register  of  the  Land  Office  from 
canceling  entries  for  land,  receiving  and  acting  upon  ap- 
plications and  making  surveys.^^     Likewise,  no  iujuuc- 

56  Scott  V.  Donald,  165  U.  S.  107,  17  Sup.  Ct.  262,  41  L.  ed.  648; 
Pabst  Brewing  Co.  v.  Crenshaw,  120  Fed.  144  (state  beer  inspector 
restrained  from  interfering  with  interstate  commerce  under  author- 
ity of  state  statute);  Union  Pac.  E.  Co.  v.  Alexander,  113  Fed.  347; 
Starr  v.  Chicago  R.  I.  &  P.  Ry,  Co.,  110  Fed.  3;  Cobb  v.  Clough,  83 
Fed.  604;  President  etc.  of  Yale  College  v,  Sanger,  62  Fed,  177.  And 
Bee  Simpson  v.  Union  Stockyards  Co.,  110  Fed.  799. 

57  Metropolitan  Life  Ins.  Co.  v.  McNall,  81  Fed.  888. 

68  Gaines  v.  Thompson,  74  U.  S.  (7  Wall.)  347,  19  L.  ed.  62;  City 
of  New  Orleans  v.  Paine,  147  U.  S.  261,   13   Sup.   Ct.   303,  37   L.  ed. 


§  329  EQUITABLE  EEMEDIES.  584 

tion  will  issue  against  the  execution  of  an  authorized 
discretionary  order  of  the  Postmaster  General  in  ex- 
cluding certain  matter  from  the  mails.^^  The  same 
principle  applies  to  the  executive  officers  of  a  state.^° 

On  the  other  hand,  where  officers  of  the  Interior  De- 
partment are  about  to  make  a  resurvey  or  to  do  other 
acts  which  under  the  circumstances  do  not  rest  in  dis- 
cretion, and  some  ground  for  equity  jurisdiction  ap- 
pears, an  injunction  is  proper.^^  Likewise,  it  is  proper 
to  enjoin  the  enforcement  of  an  order  of  the  Postmaster 
General  excluding  from  the  mails  matter  not  author- 
ized to  be  excluded  ;^2  and  to  restrain  a  state  railroad 
commission  from  fixing  railroad  rates  for  interstate 
commerce,  in  excess  of  authority. ^^ 

§  329.  Discretionary  Acts — When  a  public  officer  is 
vested  with  discretion,  an  injunction  will  not  issue  to 
restrain  acts  coming  within  the  discretionary  power 
unless  fraud  or  corruption  is  shown,  or  it  is  clear  that 

162;  Litchfield  v.  Eichards,  9  Wall.  577,  19  L.  ed,  681;  Kirwan  v. 
Murphy,  189  U.  S.  35,  23  Sup,  Ct.  599,  47  L.  ed.  698. 

59  Public  Clearing-House  v.  Coyne,  194  U.  S.  497,  24  Sup.  Ct.  789, 
48  L.  ed.  1092;  Enterprise  Sav.  Assn.  v.  Zumstein,  67  Fed.  1000,  15 
C.  C.  A.  153,  37  U.  S.  App.  71. 

60  Frost  V.  Thomas,  26  Colo.  222,  77  Am.  St.  Eep.  259,  56  Pac.  899; 
Coleman  v.  Glenn,  103  Ga.  458,  68  Am.  St.  Eep.  108,  30  S.  E.  297; 
Mott  V.  Pennsylvania  E.  Co.,  30  Pa.  St.  (6  Casey)  9,  92  Am.  Dec.  664. 
See,  also,  Delaware  Surety  Co.  v.  Layton  (Del.  Ch.),  50  Atl.  378.  As 
to  the  power  of  federal  courts  to  enjoin  the  governor  of  a  state,  see 
Davis  V.  Gray,  16  Wall.  203,  21  L.  ed.  447. 

61  Caldwell  v.  Eobinson,  59  Fed.  658;  Noble  v.  Union  Eiver  Log- 
ging Co.,  147  U.  S.  165,  13  Sup.  Ct.  271,  37  L.  ed.  123;  Smith  v.  Eey- 
nolds,  9  App.  D.  C.  261. 

C2  American  School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S. 
94,  23  Sup.  Ct.  33,  47  L.  ed.  90. 

63  Hanley  v.  Kansas  City  Southern  E.  Co.,  187  U.  S.  617,  23  Sup. 
Ct.  214,  47  L,  ed.  333.  And  it  will  likewise  issue  to  prevent  other  in- 
terference with  interstate  commerce  by  such  a  board:  Southern  Ey. 
Co.  V.  Greensboro  Ice  &  Coal  Co.,  134  Fed.  82. 


585  INJUNCTION;  PUBLIC  OFFICEES.  {  329 

the  discretion  has  been  abused.  The  distinction  be- 
tween discretionary  and  ministerial  acts  should  be  care- 
fully noted,  however,  for  if  the  act  is  of  a  ministerial 
nature  it  may  be  freely  enjoined.  This  distinction  has 
been  explained  in  the  preceding  section. 

According  to  the  principle  as  stated,  an  injunction 
will  not  issue  to  restrain  a  railroad  or  arbitration 
commission  from  taking  testimony  as  to  rates  and 
earnings  ;^^  nor  to  restrain  commissioners  appointed  to 
appraise  and  sell  Indian  lands  from  carrying  out  their 
powers;®'^  nor  to  regulate  the  discretion  of  canal  com- 
missioners as  to  the  amount  of  water  to  be  used,^*^  nor 
of  commissioners  appointed  to  condemn  rights  of  way 
as  to  the  land  to  be  taken  ,®^  nor  of  prison  commission- 
ers as  to  the  letting  of  contracts.^^  Likewise,  it  will 
not  be  granted  to  restrain  the  exercise  of  a  ferry  fran- 
chise on  the  ground  that  the  officers  erred  in  judgment 
in  granting  it.** 

Where,  however,  there  is  a  clear  abuse  of  discretion, 
the  court  may  interfere.^*^  Cases  of  this  sort  frequently 
arise  when  state  commissions  attempt  to  lower  the  rates 
of  quasi  public  corporations.  The  officers  are  bound  to 
act  within  reason,  and  in  such  a  manner  that  their  ac- 

64  New  Orleans  City  &  L.  R.  Co.  v.  State  Board  of  Arbitration, 
47  La.  Ann.  874,  17  South.  418;  Higginson  v.  Chicago,  B  &  I.  E. 
Co.,  102  Fed.  197,  42  C.  C.  A.  254.  See,  also,  MeChord  v.  Cincinnati 
etc.  E.  Co.,  183  U.  S.  483,  22  Sup.  Ct.  165,  46  L.  ed.  289. 

65  Lane  v.  Anderson,  67  Fed.  563. 

66  Cooper  V.  Williams,  4  Ohio  (4  Ham.)  253,  22  Am.  Dec.  745. 

67  Pennsylvania  E.  Co.  v.  National  Docks  &  N.  J.  J.  C.  Ey,  Co.,  56 
Fed.  697. 

6S  Southern  Min.  Co.  v.  Lowe,  105  Ga.  352,  31  S.  E.  191. 

69  Hudspeth  v.  Hall,  113  Ga.  4,  84  Am.  St.  Eep.  200,  38  S.  E.  358. 
See  the  following  miscellaneous  cases  where  relief  was  denied:  Soo- 
field  V.  Perkerson,  46  Ga.  350;  Henkel  v.  Millard,  97  Md.  24,  54  AtL 
€57;  Union  Transp.  Co.  v.  Bassett,  118  Cal.  604,  50  Pac.  754. 

TO  In  general,  see  Shanks  v.  Pearson,  66  Kan.  168,  71  Pac.  252. 


§  330  EQUITABLE  REMEDIES.  586 

tion  will  not  amount  to  confiscation.  Therefore,  when 
state  commissioners  fix  rates  which  are  so  unreason- 
able that  the  property  of  the  corporation  is  made  of 
little  value,  or  which  are  so  low  that  expenses  and  divi- 
dends cannot  be  earned,  courts  of  equity  will  interfere 
by  in j unction.'^ ^  A  private  individual,  however,  can- 
not enjoin  the  enforcement  of  the  rates  on  the  ground 
that  they  discriminate  against  him.'^^ 

§  330.     Suits  by  Officers  Against  Other  Officers When  the 

state  as  plaintiff  invokes  the  aid  of  a  court  of  equity, 
it  is  not  exempt  from  the  rules  applicnble  to  ordinary 
suitors;  that  is,  it  must  establish  a  case  of  equitable 
cognizance,  and  a  right  to  the  particular  relief  de- 
manded.'^^  In  some  jurisdictions,  however,  local  or 
state  officers  are  allowed  injunctive  relief  in  order  to 
restrain  inferior  or  other  officers  from  failing  to  prop- 
erly perform  the  duties  of  their  offices.'^*  And  a  county 
has  been  allowed  an  injunction  to  restrain  a  commis- 
sioner of  the  general  land  office  from  re-establishing  its 
boundary.^  ^ 

71  Smyth  V.  Ames,  169  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  ed.  819; 
Prout  V.  Starr,  188  U.  S.  537,  23  Sup.  Ct.  398,  47  L.  ed.  584;  Southern 
Pac.  E.  Co.  V.  Board  of  K.  E.  Commrs.,  78  Fed.  236;  Chicago  &  N.  W. 
K.  Co.  V.  Day,  35  Fed.  866,  1  L.  E.  A.  744;  Louisville  &  N.  E. 
Co.  V.  Brown,  123  Fed.  946;  Western  Union  Tel.  Co.  v.  Myatt,  98 
Fed.  335;  San  Joaquin  etc.  Co.  v.  Stanislaus  County,  90  Fed.  516; 
Cottiiig  V.  Kansas  City  Stockyards   Co.,  79  Fed.   679. 

72  Board  of  E.  E.  Commrs.  v.  Symns  Grocer  Co.,  53  Kan.  207,  35 
Pac.  217. 

73  People  V.  Canal  Board,  55  N,  Y.  390;  State  v.  Pennoyer,  23  Or. 
205,  37  Pac.  906,  41  Pac.  1104,  25  L.  E.  A.  862;  State  v.  Lord,  28 
Or.  498,  43  Pac.  471,  31  L.  E.  A.  473. 

74  Hornaday  v.  State,  62  Kan.  822,  62  Pac.  329;  Catlin  v.  Christie, 
15  Colo.  App.  291,  63  Pac.  328. 

75  Kaufman  Co.  v.  McGaughey,  3  Tex.  Civ.  App.  655,  21  S.  W.  261. 
An  opposite  result  was  reached  in  Commrs.  of  Chatham  Co.  v.  Thorne, 
117  N.  C.  211,  23  S.  E.  184,  on  the  ground  that  it  waa  within  the 
power  of  the  legislature  to  change  the  boundary. 


587  INJUNCTION;  PUBLIC  OFFICERS.  §  331 

§  331.  Elections. — An  injunction  will  not  issue,  as  a 
general  rule,  for  the  purpose  of  restraining  the  hold- 
ing of  an  election,  or  of  directing  or  controlling  the 
mode  in  which,  or  of  determining  the  rules  of  law  in 
pursuance  of  which,  an  election  shall  be  held.'^^  An 
election  is  a  political  matter,  with  which  courts  of 
equity  have  nothing  to  do.  Moreover,  the  effect  of  in- 
terference in  such  matters  might  often  result  in  the  de- 
struction of  the  government.  This  is  especially  so  when 
the  relief  is  sought  to  prevent  the  holding  of  an  elec- 
tion. "The  attempt  to  check  the  free  expression  of 
opinion — to  forbid  the  peaceable  assemblage  of  the  peo- 
ple— to  obstruct  the  freedom  of  elections — if  success- 
ful, would  result  in  the  overthrow  of  all  liberty  regu- 
lated by  law.  The  mere  effort  to  assume  such  power  is 
dangerous  to  the  rights  of  the  citizen.  If  the  courts 
can  dictate  to  the  officers  of  the  people  that  they  shall 
not  hold  an  election  from  fear  of  some  imaginary  wrong, 
then  people  and  officers  are  entirely  subservient  to  the 
courts,  and  the  consequences  are  too  fearful  to  contem- 
plate."^'    Thus,  an  injunction  will  not  issue  to  restrain 

76  Fletcher  v.  Tuttle,  151  111.  41,  42  Am.  St.  Rep.  220,  37  N.  E. 
683,  25  L.  R.  A.  143;  Morgan  v.  Wetzel  County  Court,  53  W.  Va.  372, 
44  S.  E.  182.  Nor  will  equity  interfere  to  control  a  political  party  in 
its  management  of  a  primary  election:  Winnett  v.  Adams  (Neb.),  99 
N.  W.  681. 

77  Walton  V.  Beveling,  61  111.  201.  In  some  jurisdictions,  however, 
these  considerations  are  not  controlling.  In  Wisconsin,  an  injunc- 
tion will  issue  to  restrain  the  Secretary  of  State  from  calling  an  elec- 
tion when  the  apportionment  act  is  illegal:  State  v.  Cunningham,  81 
Wis.  440,  51  N.  W.  724,  15  L.  E.  A.  561;  State  v.  Cunningham,  83  Wis. 
90,  35  Am.  St.  Rep.  27,  53  N.  W.  35,  17  L,  R.  A.  145.  In  England, 
under  the  Judicature  Act,  authorizing  the  issuance  of  injunctions 
to  protect  any  right  which  could  be  asserted  either  at  law  or  in  equity, 
an  injunction  will  issue  to  restrain  an  election  to  office:  Richardson 
V.  Michby  School  Board,  [1893]  3  Ch.  510;  Aslatt  v.  Corporation  of 
Southampton,  16  Ch.  D.  143;  North  London  Ry.  Co.  v.  Great  Northern 
Ry.  Co.,  11  Q.  B.  D.  30.  In  the  following  cases  injunctions  were 
granted  to  restrain  the  calling  of  county  seat  elections:   Solomon   v. 


§  332  EQUITABLE  EEMEDIES.  588 

the  holding  of  an  election  although  it  is  alleged  that  it 
is  without  authority  of  law,"''^  or  that  the  act  authoriz- 
ing it  or  providing  for  apportionment  is  unconstitu- 
tionalJ*  And  the  mere  fact  that  the  cost  of  the  elec- 
tion will  have  to  be  borne  by  the  state  and  indirectly 
by  the  tax-payers,  is  no  ground  for  an  injunction  at  the 
relation  of  a  tax-payer,  for  the  injury  is  too  triflin 


80 


§  332.  Same — Continued. — Likewise,  an  injunction  will 
not  be  issued  to  forbid  any  of  the  steps  in  the  proceed- 
ings.^^ Thus,  it  is  not  proper  to  restrain  officers  from 
returning  a  list  of  voters  on  the  ground  that  it  is  il- 
legal ;^2  nor  to  restrain  the  county  clerk  from  putting 
on  the  ballot  the  candidates  of  one  faction  under  the 
party  designation;^^  nor  to  compel  election  officers  to 

Fleming,  34  Neb.  40,  51  N.  W.  304;  Streissguth  v.  Geib,  67  Minn.  360, 
6f»  N.  W.  1097.  For  other  instances  of  relief  granted,  see  Cascaden  v. 
City  of  Waterloo,  106  Iowa,  673,  77  N.  W.  333;  City  of  Macon  v. 
Hughes,  110  Ga.  795,  36  S.  E.  247;  Layton  v.  City  of  Monroe,  23  South. 
99,  50  La.  Ann.  121. 

78  Walton  V.  Beveling,  61  111.  201;  Darst  v.  People,  62  111.  306;  Har- 
ris V.  Schryock,  b2  111.  119;  Kerr  v.  Riddle  (Tex.  Civ.  App.),  31  S.  W. 
328. 

79  Fletcher  v.  Tuttle,  151  111.  41,  42  Am.  St.  Eep.  220,  37  N.  E.  683, 
25  L.  R.  A.  143;  Fesler  v.  Brayton,  145  Ind.  71,  44  N.  E.  37,  32  L.  E. 
A.  578.  But  see  contra,  State  v.  Cunningham,  81  Wis.  440,  51  N.  W. 
724,  15  L.  E.  A.  561;  State  v.  Cunningham,  83  Wis.  90,  35  Am.  St.  Eep. 
27,  53  N.  W.  35,  17  L.  E.  A.  145;  Gile  v.  Stegner  (Minn.),  100  N.  W. 
101. 

80  State  V.  Thorson,  9  S.  D.  149,  68  N.  W.  202,  33  L.  E.  A.  582. 

81  In  general,  see  People  v.  Barrett,  203  HI.  99,  96  Am.  St.  Eep. 
297,  67  N.  E.   742;   Anthony  v.  Burrow,   129  Fed.   783. 

82  Hardesty  v.  Taft,  23  Md.  513,  87  Am.  Dec.  584;  Ex  parte 
Lumsden,  41  S.  C.  553,  19  S.  E.  749. 

83  State  V.  Johnson,  18  Mont.  556,  46  Pac.  440.  See,  also,  Mayor 
etc.  of  Annapolis  v.  Gadd  (Md.),  57  Atl.  941.  But  it  is  held  in 
Montana,  following  the  Wisconsin  cases,  that  an  injunction  will 
issue  to  restrain  the  county  clerk  from  printing  an  unauthorized 
ticket  on  the  ballot.  Thus,  an  injunction  has  been  awarded  against 
printing  names  of   candidates   nominated   by  petition   under   a   party 


589  INJUNCTION;  PUBLIC  OFFICERS.  §  333 

admit  certain  representatives  to  the  polling  places  ;^^ 
nor  to  prevent  the  publication  of  the  result  as  required 
by  law,^**  nor  the  canvassing  of  the  vote,^^  nor  the  cer- 
tification of  the  result  to  the  governor,^^  nor  the  de- 
livery of  the  sealed  returns  to  the  speaker  of  the  lower 
house  of  the  legislature.*^  And  a  Secretary  of  State 
will  not  be  enjoined  from  publishing  proposed  amend- 
ments to  the  state  constitution,  although  such  amend- 
ments, if  adopted,  might  be  invalid.*^ 

§  333.  Title  to  Public  Office — It  is  a  principle  of  uni- 
versal application  that  an  injunction  will  not  issue 
when  its  object  is  to  try  title  to  public  office.'*^  The 
reasons  for  this  rule  are  that  such  cases  involve  politi- 
cal rights,  with  which  equity  has  nothing  to  do,  and 
that  generally  there  is  an  adequate  remedy  at  law.  In 
case  of  contested  elections  this  legal  remedy  is  often  of 

designation:  State  v.  Moran,  24  Mont.  433,  63  Pac.  390;  State  v. 
Eeek,  18  Mont.  557,  46  Pac.  438;  State  v.  Eotwitt,  18  Mont.  502, 
46  Pac.  370;  State  v.  Tooker,  18  Mont.  540,  46  Pac.  530,  34  L.  E.  A. 
315;  State  v.  Johnson,  18  Mont.  548,  46  Pac.  533;  State  v.  Bailey, 
18  Mont.  554,  46  Pac.  1116;  State  v.  Fisher,  18  Mont.  560,  46  Pac. 
1117. 

84  Weaver  v.  Toney,  107  Ky.  419,  54  S.  W.  732,  50  L.  R.  A.  105. 

86  Eobinson  v.  Wingate  (Tex.  Civ.  App.),  80  S.  W.  1067;  Ex 
parte  Mayes  (Tex.),  44  S.  W.  831;  Ogburn  v.  Elmore  (Ga.),  48 
S.  E.  702.  But  see  dictum  in  Sweeney  v.  Webb  (Tex.  Civ.  App.), 
76  S.  W.  766.  Compare  L.  Epstein  &  Son  v.  Webb  (Tex.  Civ.  App.), 
75  S.  W.  337. 

88  Willeford  v.  State,  43  Ark.  63;  Weil  v.  Calhoun,  25  Fed.  865; 
State  V.  Carlson  (Neb.),  101  N.  W.  1004;  Mendenhall  v.  Denham, 
35  Fla.  250,  17  South.  561. 

87  Alderson  v.  Commissioners,  32  W.  Va.  640,  25  Am.  St.  Rep. 
840,  9  S.  E.  868,  5  L.  E.  A.  334. 

88  Fleming  v.  Guthrie,  32  W.  Va.  1,  25  Am.  St.  Rep.  792,  9  S.  E. 
23,  3  L.  R.  A.  53;  Smith  v.  Myers,  109  Ind.  1,  58  Am.  Rep.  375,  9 
N.  E.  692. 

89  People  V.  Mills,  30  Colo.  262,  70  Pac.  322. 

»o  In  general,  see  Beebe  v.  Robinfion,  52  Ala.  66;  Moulton  t.  Beid, 
54  Ala.  320. 


I  334  EQUITABLE  KEMEDIES.  590 

statutory  origin,  but  in  most  cases  the  relief  by  the  com- 
mon-law writ  of  quo  warranto  is  ample. 

It  may  be  laid  down  as  a  general  rule  that  a  claim- 
ant out  of  possession  will  not  be  awarded  an  injunc- 
tion against  the  party  in  possession  of  a  public  offiee.^^ 
In  such  a  case  the  only  question  involved  is  the  title  to 
the  office;  and  often  the  effect  of  an  injunction  would 
be  to  render  an  office  vacant,  to  the  injury  of  the  public. 
Likewise,  it  will  not  be  issued  when  both  parties  are 
out  of  possession  f^  nor  when  the  suit  is  brought  against 
the  appointing  body  and  in  effect  is  for  reinstatement.*^^ 
And  the  same  result  is  reached  although  the  application 
for  relief  is  made  in  the  name  of  the  state  at  the  rela- 
tion of  the  claimant.^* 

§  334.  Same — Continued. — For  the  same  reasons  an  in- 
juuctlou  will  not  issue  at  the  suit  of  a  member  of  the 
appointing  body,  to  restrain  a  ijerson  alleged  to  have 

91  Cochran  v.  McCleary,  22  Iowa,  75;  Neeland  v.  State,  39  Kan. 
154,  18  Pac.  165;  State  v.  Eost,  47  La.  53,  16  South.  776;  Washington 
Co.  Commrs.  v.  Board  of  County  School  Comnirs.,  77  Md.  283,  26 
Atl.  115;  Arnold  v.  Henry,  155  Mo.  48,  78  Am.  St.  Eep.  556,  55 
S.  W.  1089;  People  v.  Draper,  24  Barb.  265;  Patterson  v.  Hubbs, 
65  N.  C.  119;  State  v.  Wolfenden,  74  N.  C  103;  Harding  v.  Eichinger, 
'57  Ohio  St.  371,  49  N.  E.  306;  Hagner  v.  Heyberger,  7  Watts   &  S. 

104,  42  Am.  Dec.  220;  Gilroy'a  Appeal,  100  Pa.  St.  5;  Kilpatrick 
V.  Smith,  77  Va.  347;  Mullen  v.  City  of  Tacoma,  16  Wash.  82,  47 
Pac.  215;  Huels  v.  Hahn,  75  Wis.  468,  44  N.  W.  507;  State  v.  Eice, 
67  S.  C.  236,  45  S.  E.  153;  Brower  v.  Kantner,  190  Pa.  St.  182,  43 
Atl.  7;  McAllen  v.  Rhodes,  65  Tex.  348.  But  see  Ehlinger  v.  Ban- 
kin,  9  Tex.  Civ.  App.  424,  29  S.  W.  240. 

92  State  V.  Host,  47  La.  Ann.  53,  16  South.  663;  People  v.  Dis- 
trict Court  of  Lake  County,  29  Colo,  277,  93  Am.  St,  Rep.  61,  68  Pac. 
224. 

93  Callan  v.  Fire  Dept.  Commrs.,  45  La.  Ann.  673,  12  South.  834; 
McNiece  v,  Sohmer,  29  Misc.  Eep.  238,  61  N.  Y.  Supp.  193, 

94  State  V.  Herreid,  10  S,  D.  16,  71  N.  W.  319;  State  v.  Alex- 
ander, 107  Iowa,  177,  77  N.  W.  841;  State  v.  Wolfenden,  74  N.  C. 
103;  State  v.  Duffel,  32  La.  Ann.  649. 


591  INJUNCTION;  PUBLIC  OFFICERS.  §  335 

been  illeji^ally  appointed  ;^^  nor  at  the  suit  of  a  tax-payer 
or  elector  f^  nor  at  the  suit  of  a  local  body  or  muucipal 
corporation.^^ 

Again,  it  will  not  issue  in  aid  of  an  election  contest 
to  restrain  canvassing  of  the  votes,^^  the  issuance  of  a 
certificate  of  election,®^  nor  to  determine  which  party 
is  entitled  to  the  office.^^*^  Nor  will  it  issue  to  restrain 
the  issuance  of  a  commission  to  a  person  alleged  to  be 
illegally  appointed.^*'^  And  the  fact  that  an  election 
authorizing  the  change  of  a  township  organization  is 
illegal  is  not  sufficient  to  warrant  an  injunction  against 
the  appointment  of  commissioners,  for  the  remedy  by 
quo  warranto  after  the  office  is  assumed  will  be  ade- 
quate.^''^ 

§  335.  Possession  of  Office  Protected — While  the  title  to 
public  office  will  not  be  determined  in  an  injunction 
proceeding  the  possession  of  a  de  facto  officer  will  be 
protected  against  interference  of  an  adverse  claimant 
whose  title  is  in  dispute,  until  the  latter  shall  establish 

95  Goldsworthy  v.  Boyle,  175  Pa.  St.  246,  34  Atl.  630;  Updegraf 
V.  Crans,  47  Pa.  St.  103. 

86  State  V.  Aloe,  152  Mo.  466,  54  S.  W.  494;  State  v.  Van  Beek, 
87  Iowa,  569,  43  Am.  St.  Eep.  397,  54  N.  W.  525;  Fahy  v.  John- 
stone, 21  App.  Div.  154,  47  N.  Y.  Supp.  402;  Brumlcy  v.  Boyd,  28 
Tex.  Civ.  App.  164,  66  S.  W.  874. 

97  State  V.  Withrow,  154  Mo.  397,  55  S.  W.  460;  District  Tp.  v. 
Barrett,  47  Iowa,  110;  District  Tp.  v.  Myles,  109  Iowa,  541,  80  N.  W. 
544. 

98  Ex  parte  Wimberley,  57  Miss.  437;  Wilder  v.  Underwood,  60 
Kan.   859,  57  Pac.   965. 

99  Coleman  v.  Glenn,  103  Ga.  458,  68  Am.  St.  Eep.  108,  30  S.  E. 
297;  Ward  v.  Sweeney,  106  Wis.  44,  82  N.  W.  169;  People  v.  Mc- 
Clees,  20  Colo.  403,  38  Pac.  468,  26  L.  E.  A.  646. 

100  Dickey  v.  Eeed,  78  HI.  261;  Updegraf  v.  Crans,  47  Pa.  St.  103. 

101  Coleman  v.  Glenn,  103  Ga.  458,  68  Am.  St.  Eep.  108,  30  S.  E. 
297. 

102  Fort   V.   Thompson,   49  Neb.    772,   69   N.    W.   110, 


i  335  EQUITABLE  EEMEDIES.  592 

his  title  at  law.^°'  In  such  a  case  the  right  to  the  office 
is  not  considered.  "The  welfare  and  good  order  of  so- 
ciety and  government  require  that  those  engaged  in 
the  discharge  of  public  duties  should  not  be  disturbed 
by  claimants  whose  right  to  discharge  their  functions 
is  as  yet  uncertain.  Equity  will  protect  the  possession 
of  the  incumbents  from  any  unlawful  intrusion.  The 
public  welfare  requires  that  such  protection  should  not 
be  left  to  the  totally  inadequate  remedy  of  an  action 
for  trespass."^°^  But  in  order  to  warrant  this  relief 
it  must  appear  that  there  has  been  some  act  or  threat 
indicating  an  intent  to  interfere  with  possession.  If 
this  is  not  present  the  injunction  will  be  refused,  for 
only  the  title  to  office  is  involved.^"^  For  the  same  rea- 
son, a  party  in  possession  cannot  enjoin  the  appointing 
power  from  naming  his  successor  on  the  ground  that 
the  incumbent  fears  that  the  new  appointee  may  in- 
terfere with  his  possession. ^•'^     And  in  all  cases  the 

103  Ehodes  v.  Driver,  69  Ark.  606,  86  Am.  St.  Kep.  215,  65  S.  W. 
106;  State  v.  Superior  Court  of  Snohomish  County,  17  Wash.  12,  61 
Am.  St.  Eep.  893,  48  Pac.  741;  Appeal  of  Town  Council  (Pa.),  15  Atl. 
730;  Parsons  v.  Durand,  150  Ind.  203,  49  N.  E.  1047;  City  of  Hunting- 
ton V.  Cast,  149  Ind.  255,  48  N.  E.  1025;  Guillotte  v.  Poincy,  41  La. 
Ann.  333,  6  South.  507,  5  L.  E.  A.  403;  Poyntz  v.  Shackelford,  107  Ky. 
546,  54  S.  W.  855;  Hopkins  v.  Swift,  100  Ky.  14,  37  S.  W.  155;  Brady 
V.  Sweetland,  13  Kan.  41;  Palmer  v.  Foley,  45  How.  Pr.  110;  Kerr  v. 
Trego,  47  Pa.  St.  292;  Eeemelin  v.  Mosby,  47  Ohio  St.  570,  26  N.  E, 
717;  Wheeler  v.  Fire  Commrs.,  46  La.  Ann.  731,  15  South.  179;  Stenglein 
T.  Beach,  128  Mich.  440,  8  Detroit  Leg.  N.  721,  87  N.  W.  449.  But 
sec  Osgood  V.  Jones,  60  N.  H.  543.  In  such  an  action  the  title  to  the 
office  cannot  be  tried:  Scott  v.  Sheehan,  145  Cal.  691,  79  Pac.  353. 

104  City  of  Huntington  v.  Cast,  149  Ind.  255,  48  N.  E.  1025. 

106  Jones  V.  Commissioners  of  Granville,  77  N.  C.  280;  State  v. 
Judge,  48  La.  Ann.  1501,  21  South.  94. 

106  Eeemelin  v.  Mosby,  47  Ohio  St.  570,  26  N.  E.  717j  Delahanty  v, 
Warner,  75  111.  185,  20  Am.  Eep.  237. 


693  INJUNCTION;  PUBLIC  OFFICEEa  S  336 

court  should  require  the  strongest  showing  before  in- 
terfering.^ °'^ 

It  has  been  held  that  while  it  is  proper  for  the  court 
to  take  cognizance  of  a  case  where  the  facts  upon  which 
the  title  to  the  office  depends  are  disputed  and  uncer- 
tain, "it  would  seem  anomalous  for  a  court  of  equity 
to  exercise  its  preventive  jurisdiction  in  favor  of  one 
who,  upon  the  undisputed  facts  had  no  right  to  re- 
tain possession  of  an  office  against  one  who,  upon  the 
equally  undisputed  facts,  was  entitled  to  it."^"^ 

§  336.  Payment  of  Salaries. — An  injunction  will  not 
issue  to  restrain  the  payment  of  salary  or  fees  to  a 
de  facto  officer  whose  title  is  questioned.^'^^  "The  pub- 
lic welfare  demands  that  a  public  office  be  filled  by 
some  person;  and  if  compensation  is  withheld  from  the 
incumbent  pending  litigation  over  his  right  thereto, 
much  of  the  inducement  to  an  efficient  discharge  of  the 
duties  of  the  position  is  withdrawn,  and  in  many  cases 
the  ability  to  continue  the  discharge  of  such  duties  pre- 
vented. Equity,  therefore,  will  not  jeopardize  the  due 
performance  of  an  important  public  trust  in  order 
merely  to  secure  to  one  of  the  claimants  the  fees  and 
emoluments  pertaining  to  it,  in  the  event  he  should 
finally  succeed  in  establishing  his  claim. "^^"^  And  this 
rule  prevails  although  it  may  be  perfectly  apparent  that 
the  incumbent  is  not  legally  entitled  to  the  position.^ ^^ 

107  Goldman  v.  Gillespie,  43  La.  Ann.  83,  8  South.  880;  Ward 
V.  Sweeney,  106  Wis.  44,  82  N.  W.  169. 

108  School  District  v.  Waseca  Co.,  77  Minn.  167,  79  N.  W.  668. 

109  Greene  v.  Knox,  175  N.  Y.  432,  67  N.  E.  910;  Tappan  v.  Gray,  9 
Paige,  507;  Stone  v.  Wetmore,  42  Ga.  601;  McAllen  v.  Ehodes,  66 
Tex.  348;  Lawrence  v.  Leidigh,  58  Kan.  676,  50  Pac.  889;  Burgess  v. 
Davis,  138  IlL  578,  28  N.  E.  817.     See,  also,  Colton  v.  Price,  50  Al».. 

110  Lawrence  v.  Leidigh,  58  Kan.  676,  50  Pac.  889. 

111  Tappan  v.  Gray,  9  Paige,  507. 

Equitable  Eemedies,  Vol.  I — 38 


§  337  EQUITABLE  EEMEDIES.  6»4 

In  case  the  claimant  succeeds  at  law,  he  may  recover 
from  the  incumbent  the  amount  of  the  salary  or  fees 
collected;  but  the  mere  fact  that  the  incumbent  is  in- 
solvent and  cannot  therefore  respond  at  law  is  not  suf- 
ficient to  warrant  equitable  relief.^ ^^ 

§  337.  Removal  of  Officers. — An  officer  in  possession 
cannot,  however,  enjoin  other  officers  from  removing 
him.^^^  The  right  to  an  office  is  said  not  to  be  a  prop- 
erty right.  An  action  to  enjoin  removal  raises  a  polit- 
ical question  as  to  the  title  to  the  office,  for  only  by 
determining  the  right  can  the  court  decide  the  ques- 
tion.    Hence  this  line  of  cases  is  distinguishable  from 

112  Lawrence  v.  Leidigh,  58  Kan.  676,  50  Pac.  889, 

113  In  re  Sawyer,  124  U.  S.  200,  8  Sup.  Ct.  482,  31  L.  ed.  402;  White 
V.  Berry,  171  U.  S.  366,  18  Sup.  Ct.  917,  43  L.  ed.  199;  Page  v.  Moffett, 
85  Fed.  38;  Couper  v.  Smyth,  84  Fed.  757;  Morgan  v.  Nunn,  84  Fed. 
551;  Dudley  v.  James,  83  Fed.  345;  Carr  v.  Gordon,  82  Fed.  373;  Taylor 
V.  Kercheval,  82  Fed.  497;  Palmer  v.  Board  of  Education,  47  App. 
Div.  547,  62  N.  Y.  Supp.  485;  Muhler  v.  Hedekin,  119  Ind.  481,  20  N. 
E.  700;  Hcffran  v.  Hutchins,  160  111.  550,  52  Am.  St,  Rep.  353,  43  N. 
E.  709  (affirming  56  111.  App.  581);  Marshall  v.  Board  of  Managers, 
201  111.  9,  66  N.  E,  314;  Cozart  v,  Fleming,  123  N.  C.  547,  31  S.  E.  822; 
Howe  V.  Dunlap,  12  Okla.  467,  72  Pac.  365;  Eiggins  v,  Thompson,  30 
Tex,  Civ,  App.  242,  70  S.  W,  578. 

And  it  follows  that  a  mandatory  injunction  will  not  issue  to  com- 
pel reinstatement:  McNiece  v.  Sohmer,  29  Misc.  Rep.  238,  61  N,  Y, 
Supp.  193.  It  has  been  held  that  an  injunction  will  not  issue  to 
restrain  city  officers  from  recognizing  the  new  appointee:  Howe  v. 
Dunlap,  12  Okla.  467,  72  Pac.  365,  895, 

There  is  a  slight  dissent  from  the  rule  of  the  text.  In  Armatage  v. 
Fisher,  74  Hun,  167,  26  N.  Y.  Supp.  364  (affirming  4  Misc.  Rep.  315, 
24  N.  Y.  Supp,  650),  it  was  held  that  a  president  of  a  city  council 
might  enjoin  his  colleagues  from  removing  him  without  authority 
from  his  position  as  president j  and  in  Stahlhut  v.  Bauer,  51  Neb.  64, 
70  N.  W,  496,  it  was  held  that  an  injunction  will  issue  to  restrain  a 
citv  council  from  removing  a  mayor  when  it  has  absolutely  no  jurisdic- 
tion in  the  matter.  And  in  Aslatt  v.  Corporation  of  Southampton, 
L.  R,  16  Ch.  D.  143,  the  relief  was  granted  under  the  "just  and  con- 
venient" section  of  the  .Judicature  Act, 


595  INJUNCTION;  PUBLIC  OFFICERS.  §  337 

that  in  which  the  injunction  is  granted  to  prevent  in- 
trusion pending  dispute.  Moreover,  the  courts  hesitate 
to  interfere  with  the  executive  branch  of  the  govern- 
ment in  matters  affecting  the  performance  of  its  func- 
tions. 

In  recent  years  the  federal  courts  have  been  called 
upon  frequently  to  restrain  the  removal  of  officers 
whose  tenure  is  supposed  to  be  protected  by  civil  ser- 
vice rules.  But  it  has  been  held,  with  one  or  two  ex- 
ceptions, that  such  relief  is  not  proper.^  ^^  In  some  in- 
stances the  decisions  are  rested  on  the  ground  that  the 
regulations  as  to  removal  are  mere  rules  of  the  execu- 
tive, and  that  therefore  there  is  no  vested  right  to  pro- 
tect. But  generally,  the  judges  have  come  back  to  the 
fundamental  principle,  and  have  placed  their  decisions 
squarely  upon  the  ground  that  equity  has  no  jurisdic- 
tion over  political  matters. 

Since  the  court  will  not  enjoin  the  executive  from 
removing  an  officer,  it  follows  as  a  matter  of  course  that 

114  White  V.  Berry,  171  U.  S.  366,  18  Sup.  Ct.  917,  43  L.  ed.  199; 
Page  V.  Moffett,  85  Fed.  38;  Couper  v.  Smyth,  84  Fed.  757;  Morgan 
V.  Nunn,  84  Fed.  551;  Carr  v,  Gordon,  82  Fed.  373;  Taylor  v.  Kerch- 
eval,  82  Fed.  497.  In  Priddie  v,  Thompson,  82  Fed,  186,  and  Butler 
V.  White,  83  Fed.  578,  the  opposite  conclusion  was  reached.  Speak- 
ing of  an  officer  as  entitled  to  the  protection  of  equity,  Jackson,  J., 
in  the  latter  c'ase  said:  "Has  not  a  person  who  holds  and  is  in  posses- 
sion of  an  office  to  which  there  is  a  fair  salary  attached,  to  remunerate 
him  for  his  services,  a  right  to  the  protection  of  the  law  to  prevent 
an  injury  to  him  by  the  doubtful  assertion  of  the  rights  of  another 
as  to  hia  office?  Has  he  not  a  material  interest  in  the  possession  of 
the  office  and  the  salary  attached  to  it?  If  he  has  such  an  interest 
in  the  office  and  emoluments,  is  there  not  a  right  which  should  be 
recognized  and  protected  by  the  law  in  the  employment  of  it?  The 
fact  that  another  party  desires  and  seeks  the  office  is  evidence  of  its 
value  to  him,  and,  if  it  is  valuable  to  the  one  seeking  it,  surely  it 
must  be  to  the  one  holding  it."  "Equity  alone  furnishes  that 
remedy,  and,  if  this  remedy  does  not  exist,  then  there  is  a  case  of  an 
alleged  wrong  without  a  remedy." 


I  338  EQUITABLE  EEMEDIES.  696 

it  will  not  enjoin  a  trial  on  charges  preferred."'  And 
this  rule  will  be  adhered  to  although  it  is  alleged  that 
the  body  of  triers  is  prejudiced  and  will  abuse  its  dis- 
cretion."® 

Upon  the  same  principle,  the  enforcement  of  a  munic- 
ipal ordinance  will  not  be  enjoined  merely  on  the 
ground  that  it  will  deprive  the  complainant  of  his 
office."^ 

§  338.  Action  of  De  Facto  Officers. — An  injunction  will 
not  issue  to  restrain  de  facto  public  officers  from  per- 
forming certain  acts  on  the  ground  that  they  are  power- 
less because  not  legally  qualified."®  Where,  however, 
a  legislative  body,  by  the  vote  of  persons  not  legally  en- 
titled, directs  an  officer  to  do  an  act  which  will  be  valid 
only  if  the  authorization  is  proper,  an  injunction  will 
issue  against  the  performance.  Thus,  where  a  board  of 
supervisors,  by  a  vote  in  which  a  person  not  legally  en- 
titled to  office  had  the  deciding  voice,  ordered  the  clerk 
to  submit  the  question  of  changing  a  county  seat  to  the 
electors,  an  injunction  was  allowed."' 

115  White  V.  Wahlenberg,  113  Iowa,  236,  84  N.  W.  1026;  Cox  v. 
Voores,  55   Neb.   34,  75   N.  W.   35. 

116  Cox  V.  Moores,  55  Neb.  34,  75  N.  W.  35. 

117  Sheridan  v.  Colvin,  78  HI.  237. 

118  Graeff  v.  Felix,  200  Pa.  St.  137,  49  AtL  758;  Hardesty  ▼.  Taft, 
28  Md.  513,  87  Am.  Dec.  584. 

lie  Williams  v.  Boynton,  147  N.  Y.  426,  42  N.  E.  184;  Buck  v.  Rt«- 
^ersJd,  21  Mont.  482,  54  Pae.  942. 


597 


INJUNCTION;  MUNICIPAL  COEPOEATIONS.  S  339 


CHAPTER  XVIIL 


INJUNCTIONS     AGAINST     MUNICIPAL     CORPORA^ 
TIONS     AND      THEIR     OFFICERS. 

ANALYSIS. 

SS  33'9-343.     Limitations  on  the  exercise  of  the  remedy. 

§  339.     Injunction  agaiLst  legislative  acts — Cases  examined* 

{  340.     Same — Injunctions  generally  refused. 

§  341.     Same — Exceptions  to  the  general  rule. 

§  342.     Second  limitation;  acts  within  discretionary  powers  not 
interfered  with. 

§  343.     No  injunction  to  test  the  validity  of  municipal  organ* 
ization. 
2§  344-353.     Tax-payers'   suits. 

§  344.     General  principle. 

§  345.     Rationale  of  the  doctrine. 

§  346.     New  York  rule. 

S  347.     The  rule  in  Massachusetts. 

§  348.     The  rule  in  Ohio. 
IS  349-353.     Illustrations  of  the  general  principlew 

§  349.     Municipal  aid  bonds. 

i  350.     Injunctions  against  exceeding  constitutional  or  stattitory 
limits  of  indebtedness. 

I  351.     Awarding  contracts — "Lowest  bidder" — Discriminating 
in  favor  of  union  labor. 

f  352.     Injunctions  against  removal  of  county  seats. 

§  353.     Miscellaneous  illustrations. 

S  354.     Eelief  against  ordinances  injuring  the  individual  in  ft 
capacity   other   than   that   of  tax-payer. 

§  355.     Injunctions  against  wrongful  acts  in  generaL 


§  339.  Limitations  on  the  Exercise  of  the  Remedy — In- 
junctions Against  Legislative  Acts;  Cases  Examined.^ — "Has 
equity  the  power  to  enjoin  the  passage  of  ordinances, 

1  The  opinion  of  Magruder,  J.,  in  Stevens  v.  St,  Mary's  Training 
School,  144  111,  336,  36  Am.  St,  Eep,  438,  32  N.  E.  962,  18  L.  E.  A. 
832,  36  Cent.  L.    J.    275,  27    Am,    Law  Eev,  618,  contains    by    far 


5  339  EQUITABLE  REMEDIES.  598 

bj-laws.  resolutions,  and  orders  by  municipal  corpora- 
tions, or  is  its  power  confined  to  the  issuance  of  in- 
junctions against  the  enforcement  and  execution  of  such 
ordinances,  by-laws,  resolutions,  and  orders,  after  the 
same  have  been  passed?  ....  There  are  cases  which 
hold,  or  seem  to  hold,  that  where  a  municipal  corpora- 
tion is  about  to  pass  a  resolution  or  ordinance  which 
is  void,  as  being  ultra  vires,  a  court  of  chancery  will 
enjoin  it  from  so  doing.^  In  none  of  the  cases  [just] 
cited,  except  the  first  four,  was  the  question  now  under 
consideration  expressly  passed  upon,  but  the  facts 
stated  in  the  opinions  seem  to  warrant  the  conclusion 
that  injunctions  were .  sustained  against  the  corporate 
action  of  the  municipalities,  as  distinguished  from  the 
action  of  agents  or  officers  proceeding  under  their  or- 
ders. In  the  New  York  cases  it  was  held  that  a  court 
of  chancery  could  enjoin  the  board  of  aldermen  of  a  city 
from  pasi^ing  an  ordinance  to  construct  a  railwa^^  in 
one  of  the  streets;  t'hat  municipal  corporations  are 
creatures  of  limited  powers  in  the  appropriation  of  the 

the  most  thorough  examination  of  this  question  on  the  authorities, 
that  has  come  to  the  present  writer's  attention;  I  have,  therefore, 
made  it  the  basis  of  this  and  the  two  following  sections. 

2  "Among  such  cases  may  be  mentioned  the  following:  Davia  v. 
Mayor  etc.,  1  Duer  (N.  Y.),  451;  People  v.  Sturtevant,  9  N.  Y,  263,  59 
Am.  Dec.  536;  Davia  v.  Mayor,  14  N.  Y.  506,  67  Am.  Dec.  186;  Spring 
Valley  Waterworks  v.  Bartlett,  16  Fed.  615;  Town  of  Jacksonport  v. 
Watson,  33  Ark.  704;  State  v.  Commissioners,  39  Ohio  St.  58;  Page  v. 
Allen,  58  Pa.  St.  338,  98  Am,  Dec.  272;  Follmer  v.  Nuckolls  Co.,  6 
Neb.  204;  Peter  v.  Prettyman,  62  Md.  566;  Patton  v.  Stephens,  14 
Bush,  324;  Board  of  Education  v.  Arnold,  112  111.  11;  Spilman  v.  City 
of  Parkersburg,  35  W.  Va.  605,  14  S.  E.  279;  City  of  Valparaiso  v. 
Gardner,  97  Ind.  1,  49  Am.  Eep.  416;  City  of  Springfield  v,  Edwards, 
84  111.  626;  Howell  v.  City  of  Peoria,  90  111.  104."  See,  also,  People 
v.  Dwyer,  90  N.  Y.  402,  holding  that  "whether  the  act  enjoined  was 
or  was  not  legislative  or  discretionary,  and  if  so,  whether  other 
facts  still  justified  the  interposition  of  equity,  were  proper  subjects 
for  the  consideration  of  the  trial  court  whose  error,  if  any,  could 
only  be  corrected  by  appeal." 


599  INJUNCTION;    MUNICIPAL    COEPOKATIONS.        §  399 

funds  of  the  people;  that  when  they  attempt  to  appro- 
priate such  funds  to  purposes  not  authorized  by  their 
charters  or  by  positive  law,  whether  it  be  done  by  reso- 
lution, ordinance,  or  under  the  form  of  legislation,  their 
acts  are  void  and  that,  while  courts  will  not  attempt 
to  control  their  discretion,  yet  if,  under  pretence  of 
exercising  such  discretion,  they  threaten  or  are  about 
to  do  what  amounts  to  a  gross  abuse  of  power,  to  the 
injury  and  in  fraud  of  the  rights  of  individuals  and  the 
public,  the  courts  will  interfere  to  prevent  the  threat- 
ened injury.  But  later  decisions  in  New  York,  some  of 
which  are  referred  to  hereafter,  have  taken  a  different 
view,  refusing  to  follow  the  earlier  cases  above  men- 
tioned, as  going  too  far  in  the  direction  of  subjecting 
the  legislative  and  political  powers  of  municipal  bodies 
to  the  control  of  the  courts.^  In  Spring  Valley  Water- 
works V.  Bartlett,  supra  [in  note  2],  an  injunction 
against  the  mayor  and  supervisors  of  San  Francisco, 
restraining  them  from  passing  an  ordinance  to  fix  the 
price  of  water  furnished  to  the  city,  was  sustained, 
over  the  objection  that  the  defendants  were  a  legisla- 
tive body,  endowed  with  legislative  powers,  to  be  exer- 
cised with  absolute  discretion ;  and  it  was  held  that  the 
board  of  supervisors  of  a  municipal  corporation  will 
be  enjoined  from  passing  an  ordinance  which  is  not 
within  the  scope  of  their  powers,  when  its  passage  will 
work  an  irreparable  injury.  The  Bartlett  case,  how- 
ever, seems  to  have  been  overruled  by  the  later  case  of 
Alpers  V.  San  Francisco,  supra  [in  note  3].^     The  last 

3  "Alpers  V.  San  Francisco,  12  Saw.  631,  32  Fed.  503." 

4  It  is  hardly  accurate  to  say  that  the  Bartlett  case  was  overruled 
by  the  Alpers  case.  Sawyer,  J.,  who  delivered  the  opinion  in  the 
Bartlett  case,  concurred  in  Mr.  Justice  Field  's  opinion  delivered  in  the 
Alpers  case,  with  the  understanding  that  the  decision  in  the  prior 
case  was  not  thereby  overruled.  ' '  I  am  not  prepared  to  say, ' '  re- 
nnarks  Judge  Sawyer   (32  Fed.  510),  "that  the  court  can,  in  no  in- 


§  339  EQUITABLE  KEMEDIES.  600 

fo*ur  cases  above  cited  [in  note  2]  ....  are  cases 
where  cities  were  enjoined  from  incurring  indebtedness 
in  excess  of  the  constitutional  limit,  or  from  entering 
into  contracts  which  would  involve  such  excess  of  in- 
debtedness. But  in  these  cases  the  point  to  which  at- 
tention was  more  especially  directed  was  the  meaning 
of  the  word  'indebtedness,'  and  what  constitutes  a  'debt' 
within  the  meaning  of  the  constitution;  and  it  is  not 
altogether  clear  that  'incurring  indebtedness'  does  not 
refer  as  well  to  the  enforcement  as  to  the  passage  of  cor- 
porate resolutions. 

"A  large  number  of  the  decisions  which  uphold  the 
right  of  equity  to  interfere  with  the  action  of  municipal 
corporations  when  such  action  is  in  excess  of  their  legal 
powers  will  be  found,  on  examination,  to  be  based  upon 
facts  which  show  that  the  injunctions  were  issued 
against  the  officers  or  agents  attempting  to  execute  or 
enforce  corporate  resolutions,  ordinances,  by-laws,  or 
orders."^  .... 

stance,  or  under  no  circumstances,  enjoin  the  legislative  department 
of  a  municipal  corporation  from  passing  an  ordinance,  which  is  wholly 

•without  its  constitutional,  or  lawful  power  to  enact I  do  not 

understand,  that  the  limitation  in  the  opinion  of  the  circuit  justice  is 
broader  in  its  scope,  than  the  principle  herein  stated."  "In  what  we 
have  said  of  the  want  of  authority  in  courts  of  equity  over  the  action 
of  a  municipal  corporation,"  says  Mr.  Justice  Field  (32  Fed.  507),  "we 
confine  ourselves  strictly  to  such  action  as  is  purely  legislative,  upon 
a  matter  which  is,  by  its  charter  or  law,  made  subject  to  its  legislative 
discretion." 

B  Citing  New  London  v.  Brainard,  22  Conn.  553;  Webster  v.  Town 
of  Harwinton,  32  Conn.  131;  The  Liberty  Bell,  23  Fed.  843;  Harney  v. 
Indianapolis  etc.  Eailroad  Co.,  32  Ind.  244;  Davenport  v.  Klein- 
schmidt,  6  Mont.  502,  13  Pac.  249;  Willard  v.  Comstoek,  58  Wis.  565, 
46  Am.  Kep.  657,  17  N.  W.  401;  Lynch  v.  Eastern  Ey.  Co.,  57  Wis.  430, 
15  N.  W.  743,  825;  Place  v.  City  of  Providence,  12  E.  I.  1;  Austin  v. 
Coggeshall,  12  E.  I.  329,  34  Am.  Eep.  648;  Sherman  v,  Carr,  8  E.  I.  431; 
Newmeyer  v.  Missouri  etc.  Ey.  Co.,  52  Mo.  81,  14  Am.  Eep.  394;  Oster- 
hout  V.  Hyland,  27  Hun,  167;  Mayor  etc.  of  Baltimore  ▼.  Gill,  31  Md. 
375;  Merrill  v.  Plainfield,  45  N.  H.  126;  Hospers  v.  Wyatt,  63  Iowa, 


€01  INJUNCTION;    MUNICIPAL   COEPORATIONS.  S  340 

§  340.  Same;  Injunction  Generally  Refased. — "But  we 
are  not  limited,  in  the  investigation  of  this  subject,  to 
an  examination  of  the  facts  of  the  cases  which,  while 
sustaining  the  general  power  of  equity  to  restrain  the 
action  of  municipal  bodies,  do  not  make  any  special 
reference  to  the  mode  of  exercising  such  power.  There 
are  many  decisions  which  hold,  in  express  and  definite 
terms,  that  'the  courts  will  not  enjoin  the  passage  of 
unauthorized  ordinances,  and  will  ordinarily  act  only 
when  steps  are  taken  to  make  them  available."^  .... 
The  weight  of  authority,  and  the  tendency  of  the  more 
recent  decisions,  are  in  favor  of  the  position,  that  the 
restraining  power  of  the  courts  should  be  directed 
against  the  enforcement,  rather  than  the  passage,  of 
unauthorized  orders  and  resolutions  or  ordinances  by 
municipal  corporations.^     In  Alpers  v.  San  Francisco, 

264,  19  N.  W.  204;  Eoberts  v.  Mayor  etc.  of  New  York,  5  Abb.  Pr.  41; 
Scliumm  V.  Seymour,  24  N.  J.  Eq.  143;  List  v.  Wheeling,  7  W.  Va.  501; 
Rutz  V.  Calhoun,  100  111.  392;  McCord  v.  Pike,  121  111.  288,  2  Am.  St. 
Eep,  85,  12  N.  E.  259;  English  v.  Smock,  34  Ind.  115,  7  Am.  Rep.  215; 
City  of  Madison  v.  Smith,  83  Ind.  502;  Sackett  v.  City  of  New  Albany, 
88  Ind.  473,  45  Am.  Rep.  467;  Wright  v.  Bishop,  88  111.  302;  Sherlock 
V.  Village  of  V^innetka,  59  111.  389;  Crampton  v.  Zabriskie,  101  U.  S. 
601,  25  L  ed,  1070.  The  learned  justice  then  proceeded  to  examine  in 
some  detail  the  facts  in  the  leading  case  of  Crampton  v.  Zabriskie, 
supra,  in  Sherlock  v.  Village  of  Winnetka,  and  in  Coltorn  v.  Hanchett, 
13  111.  615,  Perry  v.  Kinnear,  42  111.  160,  Beauchamp  v.  Kankakee  Co., 
45  111.  274,  and  Carter  v.  City  of  Chicago,  57  111.  283,  and  to  show 
that  in  each  case  the  injunction  was  directed  against  the  enforci'inent 
of,  or  acts  done  in  pursuance  of,  the  illegal  legislation,  not  against  its 
passage  or  enactment. 

«  1  Dill.  Mun.  Corp.,  4th  ed.,  §  308,  note  on  page  387, 
7  "To  this  effect  are  the  following  authorities:  Des  Moines  Gas  Co. 
V.  City  of  Des  Moines,  44  Iowa,  505,  24  Am.  Rep.  756;  Linden  v. 
Case,  46  Cal,  171;  Men-iam  v.  Board  of  Supervisors,  72  Cal.  517,  14 
Pac.  137;  City  of  Chicago  v.  Evans,  24  111.  52;  Whitney  v.  Mayor  etc., 
28  Barb.  233;  People  v.  Mayor,  32  Barb.  35;  People  v.  Mayor,  9  Abb. 
Pr.  253;  Cincinnati  etc.  R.  R.  Co.  v.  Smith,  29  Ohio  St.  291;  Harrison 
V.  City  of  New  Orleans,  33  La.  Ann.  222,  39  Am.  Rep.  272;  Alpers  v. 


§  340  EQUITABLE   REMEDIES.  602 

supra  [in  note  3],  Mr.  Justice  Field,  who  wrote  the 
opinion  in  Crampton  v.  Zabi'iskie,  supra  [in  note  16, 

San  Francisco,  12  Saw.  631,  32  Fed.  503;  2  High,  Inj.  (3d  ed.),  see. 
1243."  See,  in  addition,  the  following  cases:  New  Orleans  Waterworks 
Co.  V.  City  of  New  Orleans,  164  U.  S.  471,  17  Sup.  Ct.  161,  41  L.  ed. 
518;  Murphy  v.  East  Portland,  42  Fed.  308;  Lewis  v.  Denver  City 
Waterworks  Co.,  19  Colo.  236,  41  Am.  St.  Rep.  248,  34  Pac.  993; 
Belington  &  N.  R.  Co.  v.  Town  of  Alston,  54  W.  Va.  597,  46  S.  E.  612 
(no  relief  against  repeal  of  order  granting  permission  to  use  streets) ; 
State  V.  Sup.  Ct.  of  Milwaukee  Co.,  105  Wis.  651,  81  N.  W.  1086,  48 
L.  R.  A.  819;  Barto  v.  Board  of  Supervisors,  135  Cal.  494,  67  Pac.  758; 
Dailey  v.  Nassau  County  R.  Co.,  65  N.  Y.  Supp.  396,  52  App.  Div. 
272;  McBride  v.  Newlin,  129  Cal.  36,  61  Pac.  577  (board  acting  in  a 
judicial  capacity,  in  allowing  a  claim,  not  enjoined) ;  Roby  v.  City  of 
Chicago  (111.),  74  N.  E.  768  (ordinance  granting  franchise  to  street 
railway);  Glide  v.  Superior  Court  (Cal.),  81  Pac.  225  (ordinance  re- 
lating to  formation  of  reclamation  district). 

The  importance  of  the  subject  may  justify  some  further  quotation 
from  well-considered  recent  cases.  "It  is  a  general  principle  in  the 
governmental   system    of   this   country   that   the   judicial   department 

has  no  direct  control  over  the  legislative  department The  same 

principle,  with  perhaps  some  exceptions,  or  seeming  exceptions,  ex- 
tends to  the  local  legislative  bodies  of  municipal  corporations.  A 
court  of  equity  cannot  properly  interpose  any  obstacle  to  the  exercise 
of  their  legislative  discretion  upon  a  subject  within  the  scope  of  their 
delegated  powers.  A  municipal  ordinance  passed  in  pursuance  of 
valid  authority  emanating  from  the  state  legislature  has  the  same 
force  and  effect,  within  proper  limits,  as  if  passed  by  the  legislature 

itself It  is  true,  the  municipal  legislative  body  may  adopt  an 

illegal  ordinance.  So  the  state  legislature  may  enact  an  uncon 
Btitutional  statute.  The  remedy  is  the  same  in  either  case.  By  proper 
and  timely  application  to  the  courts  the  enforcement  of  the  uncon- 
stitutional statute,  as  well  as  the  enforcement  of  the  illegal  ordin- 
ance, may  be  restrained  or  corrected.  In  such  case,  however,  the 
judicial  process  is  executed  against  some  ministerial  or  administrative 
officer,  or  against  som.e  individual  or  corporation,  and  thus  all  sub- 
stantial injury  is  averted  without  direct  interference  with  legislative 
action  or  discretion. ' '  Per  Elliott,  J.,  in  Lewis  v.  Denver  City  Water- 
works Co.,  19  Colo.  236,  41  Am.  St.  Rep.  248,  74  Pac.  993. 

Of  course,  an  injunction  will  be  denied  when  the  proposed  ordin- 
ance is  merely  inexpedient:  Wright  v.  People,  31  Colo.  461,  73  Pac. 
869;  and  also  where  infra  vires,  but  consequences  may  be  injurious: 
Kico  V.  Snider,  134  Fed.  953. 


603  INJUNCTION;  MUNICIPAL  CORPORATIONS.         §  340 

§  344,  and  note  5,  §  339],  says :  'If  by  either  body— the 
legislature  or  the  board  of  supervisors — an  unconstitu- 
tional act  be  passed,  its  enforcement  may  be  arrested. 
The  parties  seeking  to  execute  the  invalid  act  can  be 
reached  by  the  courts,  while  the  legislative  body  of  the 
state  or  of  the  municipality,  in  the  exercise  of  its  legis- 
lative discretion,  is  beyond  their  jurisdiction.  The 
fact  that  in  either  case  the  legislative  action  threatened 
may  be  in  disregard  of  constitutional  restraint,  and  im- 
pair the  obligation  of  a  contract  ....  does  not  affect 
the  question.  It  is  legislative  discretion  which  is  exer- 
cised, and  that  discretion,  whether  rightfully  or  wrong- 
fully exercised,  is  not  subject  to  interference  by  the  ju- 
diciary  The  principle  that  the  exercise  of  legis- 
lative power  by  a  municipal  body  is  beyond  control  is 
too  important,  in  our  institutions,  to  be  weakened  by 
occasional  decisions  in  disregard  of  it.'  In  Des  Moines 
Gas  Co.  V.  City  of  Des  Moines,  supra  [in  note  7],  where 
the  city  of  Des  Moines  had  chartered  a  gas  company, 
with  certain  exclusive  privileges,  and  attempted  by  a 
subsequent  ordinance  to  repeal  said  charter,  and  grant 
the  same  privileges  to  another  company,  it  was  sought 
to  enjoin  the  passage  of  the  repealing  ordinance  on  the 
ground  that  it  would  be  a  violation  of  the  contract  cre- 
ated by  the  charter,  and  therefore  unconstitutional,  but 
it  was  held  that  the  court  had  no  power  to  issue  the 
injunction,  under  the  circumstances;  and  it  was  there 
said:  'The  general  assembly  is  a  co-ordinate  branch  of 
the  state  government,  and  so  is  the  law-making  power 
of  public  municipal  corporations,  within  the  prescribed 
limits.  It  is  no  more  competent  for  the  judiciary  to  in- 
terfere with  the  legislative  acts  of  the  one  than  the 
other.  But  the  unconstitutional  acts  of  either  may  be 
annulled.  Certainly,  the  passage  of  an  unconstitu- 
tional law  by  the  general  assembly  could  not  be  en- 


i  341  EQUITABLE    KEMEDIES.  604 

joined.  If  so,  under  the  pretense  that  any  proposed 
law  was  of  that  character,  the  judiciary  could  arrest 

the  wheels  of  legislation After  its  passage   the 

judiciary  may  declare  the  law  unconstitutional.  But 
previous  to  that  time  judicial  powers  cannot  be  invoked. 
....  A  void  law  is  no  law,  and  this,  without  doubt,  is 
true  as  to  an  ordinance While  it  is  not  the  prov- 
ince of  the  judiciary  to  interfere  and  arrest  the  passage 
of  the  ordinance,  yet  the  doors  are  open  for  the  purpose 
of  testing  its  legality.'  " 

§  341.  Same;  Exceptions  to  the  General  Rule. — "There 
may  be  instances  when  this  restriction  upon  the  power 
of  the  courts  will  sometimes  be  disregarded,  as  where 
municipal  corporations  are  exercising  mere  business 
or  ministerial,  rather  than  legislative,  powers,*  or  are 
wrongfully  disposing  of  property  held  by  them  as  trus- 
tees for  the  public,^  or  are  attempting  to  act  upon  mat- 

8  Citing  City  of  Valparaiso  v.  Gardner,  97  Ind.  1,  49  Am.  Eep.  416; 
Dill.  Mun.  Corp.  (4th  ed.),  §§  473,  474,  927,  1048.  See,  also,  Board  of 
Commissioners  of  Henry  County  v.  Gillies,  138  Ind.  667,  38  N.  E.  40 
(letting  contract  a  ministerial  act). 

9  Citing  Milhau  v.  Sharp,  15  Barb.  193;  Sherlock  v.  Village  of  Win- 
netka,  59  111.  389.  See,  especially,  Eoberts  v.  City  of  Louisville,  92 
Ky.  95,  36  Am.  St.  Eep.  449,  note,  17  S.  W.  216,  where  an  injunction 
was  sustained  against  a  city  and  its  officials,  at  the  suit  of  a  tax-payer, 
to  prevent  the  passage  of  an  ordinance  by  the  city  council,  authoriz- 
ing the  mayor  to  convey  certain  real  property  acquired  and  held  by 
the  city  under  an  act  of  the  legislature.  The  court  says  in  part: 
"A  municipal  corporation  is  created  for  a  double  purpose,  and  con- 
sequently has  a  dual  character, — one  governmental  or  public,  the  other 

private  or  proprietary A  municipal  corporation,  when  holding, 

in  its  private  or  proprietary  character,  property  or  funds  in  trust  for 
tax-payers  and  inhabitants  within  its  limits,  occupies  towards  them  a 
relation  like  that  of  a  purely  private  corporation  to  its  cestuis  que 

trustent,  who  are  its  shareholders In  our  opinion,  the  general 

proposition,  a  court  of  equity  may  not  enjoin  passage  of  a  municipal 
ordinance,  must  be  confined  in  its  application  to  subjects  over  which 
the  corporation,  in  its  governmental  or  public  character,  has  discr©- 


605  INJUNCTION;  MUNICIPAL  CORPOEATIONS.         §  341 

ters  not,  by  their  charters  or  by  the  law,  subject  to  their 
jurisdiction,^*^  or  when  it  appears  that  the  mere  voting 
on,  and  formal  passage  of,  a  resolution  or  ordinance, 
will  instantly,  without  any  action  or  attempt  to  enforce 
any  right  or  privilege  under  it,  effect  an  irremediable 
private  injury."^ ^  It  can  hardly  be  claimed,  however, 
that  the  foregoing  exceptions  have  met  with  universal 
recognition. 

tionary  authority;  and,  if  it  be  conceded  taxable  inhabitants  have  a 
right  to  resort  to  equity  at  all  to  restrain  a  municipal  corporation  and 
its  officers  from  making  an  illegal  or  wrongful  disposition  of  public 
property,  whereby  the  plaintiffs  will  be  injuriously  affected,  it  reason- 
ably follows  the  power  exists  to  enjoin  passage  of  the  ordinance 
authorizing  the  act  whenever  irreparable  injury  will  be  done  to  the 

plaintiffs,  and  they  have  no  adequate  remedy  at  law The  plain 

legal  duty  is  imposed  upon  the  general  council  to  hold,  control,  and 
manage  the  wharf  property  for  use  of  the  public,  which  cannot  be 
evaded  by  transfer  of  it,  or  otherwise,"  etc.  See,  also.  People  v. 
Dwyer,  90  N.  Y.  402. 

10  Citing  Alpers  v.  San  Francisco,  12  Saw.  631,  32  Fed.  503.  See, 
also,  Wabaska  Electric  Co.  v.  City  of  Wymore,  60  Neb.  199,  8'2  N,  W. 
626  (the  injunction  should  be  directed  to  the  mayor  and  city  council, 
and  not  to  the  city,  since  in  attempting  to  legislate  upon  matters  be- 
yond its  jurisdiction  the  governing  body  of  a  city  does  not  represent 
the  city,  and  does  not  act  as  its  agent,  nor  by  color  of  its  authority), 
International  Trading  Stamp  Co.  v.  City  of  Memphis,  101  Tenn.  181, 
47  S.  W.  136.  In  Poppleton  v.  Moores,  62  Neb.  851,  88  N.  W.  128, 
it  was  held  that  "where  the  proposed  action  on  the  city's  part  in- 
volves the  entering  into,  or,  rather,  continuing  in,  contractual  relations 
materially  affecting  the  interests  of  citizens,  and  is  an  extension  of  a 
franchise  not  only  unauthorized,  but  forbidden,  by  the  city  charter,  it 
would  seem  to  warrant  the  trial  court's  interposing  by  injunction," 
eiting  People  v.  Sturtevant,  9  N.  Y.  263,  59  Am.  Dec.  536.  But  the 
eourt  is  without  jurisdiction  to  enjoin  the  passage  of  an  ordinance 
granting  a  franchise  to  a  street  railway,  when  the  power  of  granting 
such  franchise  is,  by  statute,  confided  to  the  discretion  of  the  govern- 
ing body  of  the  city:  State  v.  Superior  Court  of  Milwaukee  County, 
105  Wis.  651,  81  N.  W.  1046,  48  L.  R.  A.  819. 

11  Citing  Whitney  v.  Mayor  etc.,  28  Barb.  233.  See,  also,  the 
dictum  in  Lewis  v.  Denver  City  Waterworks  Co.,  10  Colo.  236,  41  Am. 
St.  Rep.  248,  34  Pac.  993,  conceding  an  exception  to  the  doctrine  of 
non-interference,  "if  it  should  be  made  to  appear  that  the  legislative 


§  342  EQUITABLE    KEMEDIES.  606 

§  342.  Second  Limitation;  Acts  Within  Discretionary 
Powers  not  Interfered  with. — A  second  limitation  is  found 
in  the  well-settled  principle  that  where  municipal  au- 
thorities are  acting  within  their  well-recognized  pow- 
ers, or  are  exercising  a  discretionary  power,  a  court  of 
equity  has  no  jurisdiction  to  interfere,  unless  their  ac- 
tion is  tainted  with  fraud,  or  the  power  or  discretion 
is  being  manifestly  abused  to  the  oppression  of  the  citi- 
2en  12     "The  court  will  not  interfere  to  see  whether  they 

body  of  a  municipality  was  about  to  pass  some  ordinance,  resolution,  or 
order,  and  that  its  mere  passage  would  immediately  occasion  or  be 
immediately  followed  by,  some  irreparable  loss  or  injury  beyond  the 
power  of  redress  by  subsequent  judicial  proceedings,  a  court  of  equity 
might,  perhaps,  extend  its  strong  arm  to  prevent  such  loss  or  injury," 
citing  Spring  Valley  Water  Co.  v.  Bartlett,  16  Fed.  615,  8  Saw. 
555.  In  International  Trading  Stamp  Co.  v.  City  of  Memphis,  101 
Tenn.  181,  47  S.  W.  136,  injunction  was  allowed  before  the  passage 
of  an  illegal  ordinance  taxing  the  use  of  trading  stamps,  because  after 
its   passage  a  multiplicity  of  suits  would  be  necessary. 

12  McCarmel  v.  Shaw,  155  111.  37,  46  Am.  St.  Rep.  311,  39  N.  E. 
584,  27  L.  R.  A.  580;  Fitzgerald  v.  Harms,  92  111.  372;  Brush  v.  City 
of  Carbondale,  78  111.  76;  Andrews  v.  Board  of  Supervisors,  70  111.  65; 
Mutual  Electric  Light  Co.  v.  Ashworth,  118  Cal.  1,  50  Pac.  10;  Dailey 
V.  City  of  New  Haven,  60  Conn.  314,  22  Atl.  945,  14  L.  R.  A.  69  (no 
injunction  against  a  city  refusing  to  accept  a  certain  trust) ;  Whit- 
ney V.  City  of  New  Haven,  58  Conn.  450,  20  Atl.  666  (demolition  of 
public  building  not  enjoined) ;  Mayor  v.  Camak,  75  Ga.  429  (sale  of 
stock  owned  by  city  not  enjoined) ;  Downing  v.  Ross,  1  App.  D.  C 
251  (letting  contracts  for  public  improvements);  Board  of  Commis- 
sioners  of  Perry  County  v.  Gardner,  155  Ind.  165,  57  N.  E.  908;  Soden 
V.  City  of  Emporia,  7  Kan.  App.  583,  52  Pac.  461  (manner  of  con- 
structing sewerage  system  is  within  discretionary  power);  Sullivan 
V.  Phillips,  110  Ind.  320,  11  N.  E.  300  (same);  Trustees  of  Hazel- 
green  V.  McNabb,  23  Ky.  Law  Rep.  811,  64  S.  W.  431  (necessity  of 
street  improvements  is  a  question  of  discretion) ;  Kelly  v.  Mayor  of 
Baltimore,  53  Md.  134  (discretion  in  awarding  contract);  Glasgow  v. 
City  of  St.  Louis,  107  Mo.  198,  17  S.  W.  743  (expediency  of  vacating 
a  street  is  a  question  of  discretion);  Atkinson  v.  Wykoff,  58  Mo.  App. 
86  (same);  Lane  v.  Morrill,  51  N.  H.  422;  Morgan  v.  Binghampton, 
102  N.  Y.  500,  7  N.  E.  424  (construction  of  sewer);  Black  v.  Commis- 
sioners of  Buncombe  County,  129  N.  C.  121,  39  S.  E.  818  (discretion 
in   issuing   bonds);    Delaware    County's   Appeal,    119   Pa.   St.    159,   13 


d07  INJUNCTION;  MUNICIPAL  CORPORATIONS.         §  343 

are  acting  wisely  or  judiciously."^^  "Where  legislative 
power  is  conferred  upon  [an  incorporated  city]  by  the 
state,  it  is  necessary  that  a  degree  of  freedom  should 
be  allowed  in  its  exercise;  otherwise,  the  city  would  be 
so  hampered  in  the  government  of  its  people  as  would 
defeat  the  very  ends  of  its  incorporation.  Hence  it  is 
that  the  state  courts  will  never  interfere  with  the  free 
exercise  of  such  rights  as  are  left  to  the  discretion  of 
a  corporate  authority,  unless  such  authority  should 
go  beyond  the  scoj^e  of  power  delegated,  or  unless  the 
discretion  given  should  be  abused  by  an  arbitrary  exer- 
cise thereof,  and  by  a  plain  and  unwarranted  violation 
of  private  rights."^* 

§  343.  No  Injunction  to  Test  the  Validity  of  Municipal 
Org-anization. — It  is  a  well-established  doctrine  that  quo 
warranto^  and  not  injunction,  is  the  proper  remedy  to 

Atl.  62;  Linden  Land  Co.  v.  Milwaukee  Electric  Ry.  &  Lighting  Co., 
117  Wis.  493,  83  N.  W.  851  (granting  of  franchise) ;  Kendall  v.  Frey, 
74  Wis.  26,  17  Am.  St.  Rep.  118,  42  N.  W.  466  (suitableness  of  site 
for  public  building).  But  gross  abuse  of  discretion,  as  in  the  pur- 
chase for  $28,000  of  waterworks  worth  only  $10,000,  and  inadequate 
and  unsuited  to  the  purpose,  may  be  enjoined  at  the  suit  of  a  tax- 
payer; Avery  v.  Job,  25  Or.  512,  36  Pac.  293.  See  People  v.  Dwyer, 
90  N.  Y.  402. 

13  Western  Union  Tel.  Co.  v.  City  of  New  York,  38  Fed.  552,  3  L. 
R.  A.  449. 

14  Burckhardt  v.  City  of  Atlanta,  103  Ga.  302,  30  S.  E.  32,  per 
Lewis,  J,  (question  of  necessity  of  repairs  to  street).  In  a  lead- 
ing English  case  Lord  Chancellor  Cottenliara  said,  speaking  of 
acts  of  poor-law  commissioners:  "The  court  will  not  interfere  to 
see  whether  any  alteration  or  regulation  which  they  may  direct 
is  good  or  bad;  but,  if  they  are  departing  from  that  power  which 
the  law  has  vested  in  them,  if  they  are  assuming  to  themselves  a 
power  over  property  which  the  law  does  not  give  them,  this  court  no 
longer  considers  them  as  acting  under  the  authority  of  their  commis- 
sion, but  treats  them,  whether  they  be  a  corporation  or  individuals, 
merely  as  persons  dealing  with  property  without  legal  authority": 
Frewin  v.  Lewis,  4  Mylne  &  C.  254.  See,  also,  Lord  Auckland  v. 
Westminster  Board,  L.  R.  7  Ch.  597. 


S  344  EQUITABLE  REMEDIES.  608 

inquire  whether  a  municipal  corporation  was  legally 
created,  as  well  as  to  oust  persons  exercising  the  priv- 
ileges and  powers  of  corporate  officers  when  the  munici- 
pal corporation  has  no  legal  existence.^* 

§  344.  Tax-payers'  Suits;  General  Principle. — The  pre- 
vailing doctrine  as  to  equitable  relief  against  the  abuse 
of  power  by  officers  of  municipal  corporations  was  for- 
mulated in  an  often-quoted  opinion  of  the  supreme  court 
of  the  United  States,  speaking  by  Mr.  Justice  Field; 
"Of  the  right  of  resident  tax-payers  to  invoke  the  inter- 
position of  a  court  of  equity  to  prevent  an  illegal  dis- 
position of  the  moneys  of  the  county  [or  other  munici- 
pality], or  the  illegal  creation  of  a  debt  which  they,  in 
common  with  other  property-holders  of  the  county,  may 
otherwise  be  compelled  to  pay,  there  is  at  this  day  no 
serious  question.  The  right  has  been  recognized  by  the 
state  courts  in  numerous  cases;  and  from  the  nature  of 
the  powers  exercised  by  municipal  corporations,  the 
great  danger  of  their  abuse,  and  the  necessity  of  prompt 
action  to  prevent  irremediable  injuries,  it  would  seem 
eminently  proper  for  courts  of  equity  to  interfere,  upon 
the  application  of  the  tax-payers  of  a  county,  to  prevent 
the  consummation  of  a  wrong,  when  the  officers  of  these 
corporations  assume,  in  excess  of  their  powers,  to  cre- 
ate burdens  upon  property-holders.  Certainly,  in  the 
absence  of  legislation  restricting  the  right  to  interfere 
in  such  cases  to  public  officers  of  the  state  or  county, 
there  would  seem  to  be  no  substantial  reason  why  a  bill 

15  Osborn  v.  Village  of  Oakland,  49  Neb.  340,  68  N.  W.  506,  and 
cases  cited  (no  injunction  to  prevent  the  election  of  officers  ti> 
manage  tbe  affairs  of  the  municipality  on  the  ground  that  it  has  no 
corporate  existence) ;  MacDonald  v.  Eehrer,  22  Fla.  198,  and  cases 
«ited;  People  v.  Clark,  70  N.  Y.  518;  Hughes  v.  Dobbs,  84  Tex.  502, 
19  S.  "SR.  684.  As  to  injunctions  relating  to  municipal  elections  and 
the  title  to  municipal  offices,  see  ante,  §§  331-338. 


60§  INJUNCTION;  MUNICIPAL  CORPORATIONS.         §  344 

by  or  on  behalf  of  individual  tax-payers  should  not  be 
entertained  to  prevent  the  misuse  of  corporate  power. 
The  courts  may  be  safely  trusted  to  prevent  the  abuse 
of  their  process  in  such  cases."^^ 

16  Crainpton  v.  Zabriskie  (1879),  101  U.  S.  601,  25  L.  ed.  1070.  Of 
innumerable  cases  affirming  the  doctrine,  the  following  may  be  con- 
Bulted  with  advantage  for  their  statement  of  the  doctrine  and  its 
reasons: 

Alabama.— New  Orleans,  M.  &  C.  R.  R.  Co.  v.  Dunn,  51  Ala.  128 
("the  remedy  is  simple,  expeditious,  and  preventive  of  the  abuse 
of  corporate  powers"). 

Arkansas. — Town  of  Jaeksonport  v.  Watson,  33  Ark.  704;  Russell 
V.  Tate,  52  Ark.  541,  20  Am,  St.  Rep.  193,  13  S.  W.  130,  7  L.  R.  A. 
180. 

California.— Winn  v,  Shaw,  87  Cal.  631,  636,  25  Pac.  968,  distin- 
guishing earlier  cases;  Bradfordv.  City  and  County  of  San  Fran- 
cisco, 112  Cal.  -537,  44  Pac.  912. 

Colorado. — Mclntyre  v.  Board  of  Commissioners  of  El  Paso  County, 
15  Colo.  App.  78,  61  Pac.  237. 

Connecticut. — Scofield  v.  Eighth  School  District,  27  Conn,  499. 

Florida. — Chamberlain  v.  City  of  Tampa,  40  Fla.  74,  23  South,  572. 

Georgia.— City  of  Macon  v.  Hughes,  110  Ga.  795,  36  S.  E.  247. 

Illinois. — The  Illinois  reports  abound  in  well-considered  cases  ap- 
plying the  general  principle  of  the  text.  The  rule  is  thus  formulated: 
* '  A  tax-payer  of  a  city  has  a  right  to  enjoin  any  intended  misappro- 
priation of  public  money  by  the  council  or  officers  of  the  city,  or 
payment  of  such  money  on  an  illegal  contract  or  without  authority 
of  law,  or  the  execution  of  such  contracts,  or  the  incurring  of  illegal 
indebtedness."  See  Holden  v.  City  of  Alton,  179  111.  318,  53  N.  E. 
556,  and  cases  cited;  Adams  v.  Brenan,  177  111.  194,  69  Am.  St.  Eep. 
222,  52  N.  E.  314,  42  L.  R.  A.  418,  and  cases  cited;  City  of  Chicago 
T.  Nichols,  177  111.  97,  52  N,  E.  359;  Stevens  v,  St.  Mary's  Training 
School,  144  111.  336,  36  Am.  St.  Rep.  438,  32  N.  E.  962,  18  L.  R.  A. 
832,  36  Cent.  L.  J.  275,  27  Am.  Law  Rev.  618;  McCord  v.  Pike, 
121  111,  288,  2  Am.  St.  Rep.  85,  12  N.  E,  259,  and  cases  in  monographic 
note;  Wright  v.  Bishop,  88  111.  302;  City  of  Springfield  v.  Edwards, 
S4  111.  626;  Sherlock  v.  Village  of  Winnetka,  59  111.  389,  68  111.  530; 
Perry  v.  Kinnear,  42  111,  160;  Colton  v.  Hancliett,  13  111.  615;  Scott 
V.  Allen,  53  111.  App,  341;   Gorman  v.  Tidholm,  94  111.  App.  371. 

Indiana. — Harney  v,  Indianapolis  etc,  R,  Co.,  32  Ind.  244;  English 
T.  Smock,  34  Ind.  Ho,  7  Am.  Eep.  215;  Board    of    Commissioners  of 
Henry  County  v.  Gillies,  138  Ind.  667,  38  N,  E.  40. 
Equitable  Remedies,  Vol.  1—39 


S  344  EQUITABLE  REMEDIES.  610 

Iowa. — Hospers  v.  Wyatt,  63  Iowa,  264,  19  N.  W.  204;  Anderson 
V.  Orient  Fire  Ins.  Co.,  88  Iowa,  579,  55  N.  W.  348;  Hanson  v.  Hunter 
etc.  Co.,  86  Iowa,  722,  48  N.  W.  1005,  53  N.  W.  84;  Snyder  v.  Fos- 
ter, 77  Iowa,  638,  42  N.  W.  506;  Brockman  v.  City  of  Creston,  79 
Iowa,  587,  44  N.  W.  822. 

Kentucky. — Patton  v.  Stephens,  14  Bush,  324;  Eoberts  v.  City  of 
Louisville,  92  Ky.  95,  36  Am,  St.  Eep.  449,  17  S.  W.  216. 

Louisiana. — State  v.  City  of  New  Orleans,  50  La.  Ann.  880,  24  South. 
666. 

Maryland. — Mayor  etc.  of  Baltimore  v.  Gill,  31  Md.  375;  Pete"  v. 
Prettyman,  62  Md.  566;  Mayor  of  Baltimore  v.  Keyser,  72  Md.  107, 
19   Atl.  706. 

Michigan.— Savidge  v.  Village  of  Spring  Lake,  112  Mich.  91,  70  N. 
W.  425;  Black  v.  Common  Council  of  City  of  Detroit,  119  Mich.  571, 
78  N.  W.   660;   Curtenius  v.  Hoyt,  37   Mich.  583. 

Minnesota.^Hodgman  v.  Chicago  &  St.  P.  E.  Co.,  20  Minn.  48,  20 
Gil.  36  (the  tax-payer's  ''damages"  are  special,  affecting  his  private 
property  and  private  rights) ;  Sinclair  v.  Commissioners  of  Winona 
County,  23  Minn.  404,  23  Am.  Eep.  694  (tax-payer  has  a  "special  in- 
terest distinct  from  the  public");  Flynn  v.  Little  Falls  E.  &  W.  Co., 
74  Minn.  180,  77  N.  W.  38,  78  N.  W.  106;  Grannis  v.  Board  of  Com- 
missioners of  Blue  Earth  County,  81  Minn.  55,  83  N.  W.  495. 

Missouri.— Newmeyer  v.  Missouri  &  M.  R.  Co.,  52  Mo.  81,  14  Am. 
Eep.  394;  Wagner  v.  Meetz  69  Mo.  151. 

Montana. — Davenport  v.  Kleinschmidt,  6  Mont.  502,  13  Pac.  249. 

Nebraska.— Tukey  v.  City  of  Omaha,  54  Neb.  370,  69  Am.  St.  Eep. 
711,  74  N.  W.  €13;  Ackerman  v.  Thummel,  40  Neb.  95,  58  N.  W.  738; 
City  of  South  Omaha  v.  Tax-payers'  League,  42  Neb.  671,  60  N.  W. 
957. 

New  Hampshire.— Blood  v.  Manchester  Elect.  Lt.  Co.,  68  N.  H.  340, 
39  Atl.  335.     See  Brown  v.  Eeding,  50  N.  H.  336. 

North  Carolina. — Vaughn  v.  Board  of  Commissioners,  118  N.  C.  636 
24  S.   E.  425. 

North  Dakota. — Eoberts  v.  City  of  Fargo,  10  N.  D.  230,  86  N.  W. 
726. 

Ohio.- Hays  v.  Jones,  27  Ohio  St.  218. 
Oregon.— Brownfield  v.  Houser,  30  Or.  534,  49  Pac.  843. 
Pennsylvania.— Page  v.  Allen,  58  Pa.  St.  338,  98  Am.  Dec.  272. 
Rhode  Island.— Ecroyd  v.  Coggeshall,  21  R.  I.  1,  71  Am.  St.  Rep. 
241,  41  AU.  260. 

South  Carolina.— Mauldin  v.  City  Council  of  Greenville,  33  S.  C  1, 
11  S.  E.  434,  8  L.  R.  A.  291. 


611  INJUNCTION;   MUNICIPAL   COEPOEATIONS.         §  344 

South  Dakota. — Graves  v.  Jasper  School  Township,  2  S.  D.  414, 
50   N.  W.  904. 

Texas.— Wood  v.  City  of  Victoria,  18  Tex.  Civ.  App.  573,  46  S.  W. 
284  (no  injunction  against  ultra  viixs  municipal  act  when  plaintiff 
not  injured  and  burden  of  taxation  not  increased). 

Virginia. — Lynchburg  &  R.  St.  Ky.  Co.  v.  Danieron,  95  Va.  545,  28 
S.  E.  951. 

Washington. — Times  Publishing  Co.  v.  City  of  Everett,  9  Wash.  518, 
43  Am.  St.  Rep.  865,  37  Pac.  695. 

Wisconsin. — Willard  v.  Comstock,  58  Wis.  565,  46  Am.  Rep.  657,  17 
N.  W.  401;  Webster  v.  Douglas  County,  102  Wis.  181,  72  Am.  St.  Rep. 
870,  77  N.  W.  88'5;  and  see  Linden  Land  Co.  v.  Milwaukee  Electric 
Ey.  &  L.  Co.,  107  Wis.  493,  83  N.  W.  851. 

United  States. — Davenport  v.  Buffington,  97  Fed.  234,  38  C.  C.  A. 
453,  46  L.  R.  A.  377;  Downing  v.  Ross,  1  App.  D.  C.  251;  Roberts  v. 
Bradfield,  12  App.  D.  C.  453;  Dewey  Hotel  Co.  v.  United  States  Elect. 
Lighting  Co.,  17  App.  D.  C.  356. 

The  plaintiff's  capacity  to  sue  depends  on  his  character  as  a  tax- 
j)ayer,  not  on  his  residence  within  the  municipality:  Brockman  v. 
City  of  Creston,  79  Iowa,  587,  44  N.  W.  822.  The  fact  that  the  value 
of  his  property  is  inconsiderable,  and  his  taxes  therefor  are  trifling, 
is  immaterial;  Id.;  see,  also,  Scofield  v.  Eighth  School  District,  27 
Conn.  499,  where  injunction  was  awarded  against  an  illegal  use  of 
Bchool  property  for  religious  purposes,  although  the  injury  to  the 
property  was  not  serious. 

The  tax-payer's  right  to  an  injunction  denied  when  an  adequate 
legal  remedy  provided  by  statute:  Taylor  v.  Davey,  55  Neb.  153,  75 
N.  W.  553;  Manly  Mfg.  Co.  v.  Broaddus,  94  Va.  547,  27  S.  E.  43S; 
Wahl  V.  School  Directors,  78  111.  App.  403;  or  by  certiorari:  Jackson 
V.  City  of  Newark,  53  N.  J.  Eq.  322,  31  Atl.  233, 

The  mere  fact  that  an  act  is  illegal  does  not  warrant  an  injunction 
at  suit  of  tax-payer,  when  public  funds  will  not  be  affected:  Strick- 
land V.  Knight  (Fla,),  36  South.  363  (not  against  illegal  licensing  of 
saloon);  Clark  v.  Interstate  Ind.  Tel.  Co.  (Neb.),  101  N.  W.  977  (not 
against  granting  franchise). 

The  conclusions  arrived  at  by  Judge  Dillon  in  his  discussion  of  the 
subject  have  been  generally  accepted  by  the  courts:  Dillon  Mun. 
Corp.  (4th  ed.),  §  922.  "Upon  a  survey  of  the  decisions  in  Great 
Britain  and  the  United  States,  while  they  exhibit  some  diversity  of 
opinion,  it  seems  to  us,  in  view  of  the  nature  of  municipal  powers, 
the  danger  of  abuse,  the  necessity  for  prompt  remedy  on  the  part  of 
those  most  interested  in  the  proper  administration  of  municipal  af- 
fairs,— to  wit,  the  taxable  inhabitants, — that  the  following  conclu- 
sions rest  upon  sound  reason,  and  have  also  the  support  of  the  decided 
preponderance  of  judicial  authority. 


§  344  EQUITABLE  EEMEDIES.  612 

The  suit  by  the  tax-payer  has  practically  superseded, 
in  this  country,  the  remedy  of  information  in  chancery 
by  the  attorney-general  to  restrain  ultra  vires  acts  of 
public  corporations;  still,  the  right  of  the  state,  by  the 
proper  officer,  to  maintain  proceedings  by  injunction 
to  restrain  municipal  corporations  from  doing  acts  in 
violation  of  the  constitution  and  laws  of  the  state  has 
met  with  abundant  recognition  in  our  reports.^ '^ 

It  seems  that  the  motive  which  actuates  the  tax-payer 
in  bringing  suit  to  enjoin  illegal  expenditures  of  public 

"1^.  The  proper  parties  may  resort  to  equity,  and  equity  will,  in  the 
absence  of  restrictive  legislation,  entertain  jurisdiction  of  their  suit 
against  municipal  corporations  when  these  are  acting  ultra  vires,  or 
assuming  or  exercising  a  power  over  the  property  of  the  citizen,  or 
over  corporate  property  or  funds,  which  the  law  does  not  confer  upon 
them,  and  wbere  such  acts  affect  injuriously  the  property  owner  or 
the  taxable  inhabitant.  But  if  in  these  cases  the  property  owners 
or  the  taxable  inhabitants  can  have  full  and  adequate  remedy  at  law, 
equity  will  not  interfere,  but  leave  them  to  their  legal  remedy, 

"2.  That,  in  the  absence  of  special  controlling  legislative  provision, 
the  proper  public  officer  of  the  commonwealth,  which  created  the  cor- 
poration and  prescribed  and  limited  its  powers,  may,  in  his  own  name, 
or  in  the  name  of  the  state,  on  behalf  of  residents  and  voters  of  the 
municipality,  exercise  the  authority,  in  proper  cases,  of  filing  an  in- 
formation or  bill  in  equity  to  prevent  the  misuse  of  corporate  pow- 
ers, or  to  set  aside  or  correct  illegal  corporate  acts. 

"3.  That  the  existence  of  such  a  power  in  the  state,  or  its  proper 
public  law  officer,  is  not  inconsistent  with  the  right  of  any  taxable 
inhabitant  to  bring  a  bill  to  prevent  the  coi-porate  authorities  from 
transcending  their  lawful  powers  where  the  effect  will  be  to  impose 
upon  him  an  unlawful  tax,  or  to  increase  Jiis  burden  of  taxation.  Much 
more  clearly  may  this  be  done  when  the  right  of  the  public  officer 
of  the  state  to  interfere  is  not  admitted,  or  does  not  exist;  and  in 
Buch  case  it  would  seem  that  a  bill  might  properly  be  brought  in  the 
name  of  one  or  more  of  the  taxable  inhabitants  for  themselves  and  all 
others  similarly  situated,  and  that  the  court  should  then  regard  it  in 
the  nature  of  a  public  proceeding  to  test  the  validity  of  the  corporatu 
acts  sought  to  be  impeached,  and  deal  with  and  control  it  accord- 
ingly." 

17  See  State  v.  County  Court  of  Saline  County,  51  Mo.  350,  11  Am. 
TJep,  434,  and  the  exhaustive  examination  of  the  authorities  in  the 
opinions  of  Shipley,  J.,  and  Bliss,  J.;  Board  of  Education  y.  Terri- 
tory, 12  Okla.  286,  70  Pac.  792. 


(513  INJUNCTION;   MUNICIPAL   CORPORATIONS.         §  345 

moneys — the  fact,  for  example,  that  he  is  interested  in 
preventing  the  awarding  to  a  business  rival  of  an  illegal 
contract  whose  execution  is  sought  to  be  enjoined — is 
immaterial,  if  he  sues  in  his  representative  character  as 
taxpayer.**^ 

§  345.  Rationale  of  the  Doctrine. — "The  grounds  upon 
which  such  suits  by  tax-payers  have  been  held  unmain- 
tainable are,  that  it  requires  some  individual  interest 
distinct  from  that  which  belongs  to  every  inhabitant 
of  the  town  or  county  to  give  the  party  complaining  a 
standing  in  court,  where  it  is  an  alleged  delinquency 
in  the  administration  of  public  affairs  which  is  called 
in  question ;  and  that  the  ownership  of  taxable  property 
is  not  such  a  peculiarity  as  to  take  the  case  out  of  the 
rule;  and  that  the  only  remedies  against  an  abuse  of 
administrative  power  tending  to  taxation  is  furnished 
by  the  elective  franchise  or  a  proceeding  on  behalf  of 

18  Packard  v.  Hayes,  94  Md.  233,  51  Atl.  32:  Board  of  Com- 
missioners of  Henry  County  v.  Gillies,  138  Ind.  699,  38  N.  E.  40; 
Times  Publishing  Co.  v.  City  of  Everett,  9  Wash.  518,  43  Am,  St. 
Rep.  865,  37  Pac.  95;  Keen  v.  City  of  Waycross,  101  Ga.  588,  29  S.  E. 
42;  Brockman  v.  City  of  Creston,  79  Iowa,  587,  44  N,  W.  822;  Eng- 
stad  V.  Dinnie,  8  N.  D.  1,  76  N.  W.  292;  but  see  Highway  Com- 
missioners V.  Deboe,  43  111.  App.  25,  that  relief  will  be  refused  if  it 
appears  that  the  tax-payer  is  merely  a  colorable  plaintiff,  suing  in 
behalf  of  other  parties  in  interest.  Compare  Kelly  v.  Mayor  etc.  of 
Baltimore,  53  Md,  134,  where  relief  was  refused  because  the  plain- 
tiff did  not  sue  in  a  representative  capacity;  Commissioners'  Court 
of  Perry  County  v.  Medical  Society  of  Perry  County,  128  Ala.  257, 
29  South.  586.  The  fact  that  the  plaintiff,  as  an  individual,  is  in- 
jured in  his  business  by  the  competition  of  the  municipality  engag- 
ing in  such  business  iiltra  vires,  does  not  entitle  him  to  maintain 
the  suit:  Keen  v.  City  of  Waycross,  supra;  Pudsey  Gas  Co.  v.  Cor- 
poration of  Bradford,  L.  R.  15  Eq.  167. 

It  has  been  said  that  if  the  matter  is  fully  presented  to  the 
court  and  is  decided  upon  the  merits,  a  subsequent  tax-payer's  suit 
upon  the  same  subject-matter  is  barred;  but  where  the  matter  is 
not  fully  presented,  as  where  the  suit  is  dismissed  by  consent,  there 
is  no  bar:  Lindsay  v.  Allen  (Tenn.),  82  S.  W.  171. 


S  345  EQUITABLE  EEMEDIES.  614 

the  state,  or,  in  the  case  of  an  act  without  jurisdiction, 
in  treating  the  attempt  to  enforce  the  illegal  tax  as  an 
act  of  trespass."^^  In  other  words,  the  courts  which 
have  taken  a  view  adverse  to  the  maintenance  of  such 
suits  by  the  tax-payer  have  followed  the  analogy  of  the 
familiar  rule  as  to  parties  plaintiff  in  suits  to  enjoin 
a  public  nuisance.  It  cannot  be  claimed  that  there  is 
perfect  agreement  in  the  reasons  assigned  by  the  courts 
which  uphold  the  doctrine.  Most  of  the  earlier  cases 
are  content  to  rest  it  upon  the  ground  of  urgent  public 
necessity,  and  of  the  ultimate  injury  to  tax-payers  as  a 
special  class,  distinct  from  the  general  public.  "It  is 
certainly  well  settled  that  public  wrongs  cannot  be  re- 
dressed at  the  suit  of  individuals,  who  have  no  other 
interest  in  the  matter  than  the  rest  of  the  public.  Thus 
an  individual  cannot  maintain  a  bill  of  injunction  to 
prevent  a  public  nuisance,  unless  he  suffered  thereby 
some  special  damage;  and  the  principle  governing  cases 
of  that  kind  has  been  supposed  to  be  applicable  to  the 
present  case.  But  it  appears  from  the  averments  of 
the  bill,  that  these  complainants,  as  tax-payers  of  the 
city,  and  others  similarly  situated,  in  whose  behalf  as 
well  as  their  own  the  bill  is  filed,  constitute  a  class 
specially  damaged  by  the  alleged  unlawful  act  of  the 
corporation,  in  the  alleged  increase  of  the  burden  of 
taxation  upon  their  property  situated  within  the  city. 
The  complainants  have  therefore  a  special  interest  in 
the  subject-matter  of  the  suit,  distinct  from  that  of 
the  general  public.  The  people  of  the  state  outside  of 
the  city  of  Baltimore,  who  are  not  liable  to  city  tax- 
ation, can  suffer  no  damage  from  the  illegal  act  of 
the  corporation  complained  of  in  the  bill.     Why,  then, 

19  Newmeyer  v.  Missouri  &  M.  E.  Co.  (1873),  52  Mo.  81,  85,  14 
Am.  Kep.  394,  reviewing  the  earlier  cases  pro  and  con.  See,  among 
other  cases,  Craft  v.  Jackson  County,  5  Kan.  518. 


615  INJUNCTION;   MUNICIPAL   COEPORATIONS.         8  345 

is  it  necessary  that  the  state,  by  the  attorney-general, 
should  be  a  party  to  the  cause  ?"^°  "The  injury  charged 
[illegal  issue  of  county  bonds]  as  the  result  of  the  acts 
complained  of  is  a  private  injury  in  which  the  tax-payers 
of  the  county  are  the  individual  sufferers,  rather  than 
the  public.  The  people  out  of  the  county  bear  no  part 
of  the  burden;  nor  do  the  people  within  the  county, 
except  the  tax-payers,  bear  any  part  of  it."^^  "The  ju- 
risdiction is  sustained  on  the  ground  that  the  injury 
would  be  irreparable.  The  misappropriation  of  corpor- 
ate funds  \v'ould  not  render  the  tax  levied  to  repair  the 
waste  or  supply  the  deficiency  illegal. "^^  "The  citizen 
may  not  be  able  to  protect  himself  in  any  other  way. 
If  this  is  not  his  remedy,  he  has  none.  The  money 
drawn  from  him  by  taxation  may  be  squandered  by  un- 
lawful donations  to  forward  all  manner  of  visionary 
schemes;  other  contributions  may  be  wrung  from  him 
from  year  to  year,  and  w^asted  in  the  same  way,  in  de- 
fiance of  laws  carefully  framed  for  his  protection,  and 
he  would  nevertheless  be  helpless.  A  more  proper  case 
for  injunction  cannot  well  be  conceived  than  that  in 
which  a  tax-payer  seeks  to  protect  from  lawless  waste 
a  public  fund,  which,  when  dissipated  thus,  the  law  will 
with  strong  hand  compel  him  to  replenish. "-^     Judge 

20  Mayor  etc.  of  Baltimore  v.  Gill  (1869),  31  Md.  375,  394. 

21  Newmeyer  v.  Missouri  &  M.  E.  Co.,  52  Mo.  81,  14  Am.  Eep. 
394. 

22  Willard  v.  Comstock,  58  Wis.  5G5,  46  Am.  Eep.  657,  17  N.  W. 
401. 

23  Harney  v.  Indianapolis  etc.  E.  E.  Co.,  32  Ind.  244.  "The 
foundation  of  the  doctrine  is  the  interference  with  the  rights  of 
the  tax-payer  in  the  increase  of  the  burden  of  taxation,  or  the  lia- 
bility thereto,  by  misappropriating  the  property  of  the  city,  which 
may  demand  the  levy  of  taxes  to  acquire  other  property  in  its  place; 
or,  the  property  having  been  acquired  through  taxation,  its  disposi- 
tion would  be  in  effect  a  misappropiiation  of  taxes  which  may  occa- 
sion levies  to  take  the  place  of  the  misapplied  tax":  Brockman  v. 
City  of  Creston,  79  Iowa,  587,  44  N.  W.  822. 


I  345  EQUITABLE  EEMEDIES.  616 

Dillon  finds  siifQcient  support  for  the  doctrine  in  the 
analogy  presented  by  the  familiar  rules  of  equity  relat- 
ing to  suits  by  stockholders  of  private  corporations  to 
prevent  or  redress  malfeasance  or  ultra  vires  acts  on  the 
part  of  their  governing  bodies.^*  This  explanation  has 
met  with  much  favor  from  the  courts,^^  but  it  is  obvious 
that  the  analogy  is  not  a  perfect  one. 

24  Dillon,  Miin.  Corp.  (4th  ed.),  §  915.  Professor  Pomeroy  (Equity 
Jurihprudence,  §§  259-270)  classes  these  cases  among  those  in  which 
jurisdiction  is  assumed  by  equity  for  the  purpose  of  avoiding  a 
multiplicity  of  suits,  where  numerous  persons  are  injured  by  the 
game  unlawful  act.  He  lays  aside,  as  obviously  not  pertinent  to  a 
discussion  of  the  doctrine  relating  to  multiplicity  of  suits,  the  cases 
where  it  has  been  decided  that  the  citizen  indirectly  sustaining 
an  injury  from  an  illegal  official  act  has  no  cause  of  action  what- 
ever. It  is  the  impression  of  the  present  writer  that  precisely  this 
question,  viz.,  the  reasons  for  the  existence  or  non-existence  of  any 
cause  of  action  whatever  in  the  tax-payer  because  of  his  ultimately 
having  to  bear  an  increased  burden  of  taxation,  is  the  crucial  uiie 
in  the  theory  of  " tax.-payers'  suits,"  and  that  it  has  not  received  a 
thoroughly  convincing  answer.  It  is  to  be  noticed  that  Judge  Dillon 
advances  his  suggestion  on  the  subject  in  a  tentative  manner,  and 
does  not  attempt  to  support  it  by  any  earlier  authority.  The  pro- 
priety of  the  remedy  of  injunction,  on  the  other  hand,  is  clear 
enough,  if  it  be  assumed  or  proved  that  the  wrong  to  the  tax-payer  is 
not  a  "damnum  absque  injuria."  The  question  is,  of  course,  chiefly 
of  theoretical  interest;  the  rule  itself  is  established  by  an  over- 
whelmiug  weight  of  authority. 

25  See  Russell  v,  Tate,  52  Ark.  541,  20  Am.  St.  Rep.  193,  13  S.  W. 
130,  7  L.  R.  A.  180;  Mclutyre  v.  Board  of  Commissioners  of  El  Paso 
County,  15  Colo.  App.  78,  61  Pac.  237;  Ilospers  v.  Wyatt,  63  Iowa, 
2G4;  Tukoy  v.  City  of  Omaha,  54  Neb.  370,  69  Am.  St.  Rep.  711,  74 
N.  W.  613;  Blood  v.  Manchester  Elect,  Lt.  Co.,  68  N.  H.  340,  39  Atl. 
335;  Linden  Land  Co.  v.  Milwaukee  Elect.  Ry.  &  Lighting  Co.,  83 
N.  W.  851,  107  Wis.  493;  Roberts  v.  City  of  Louisville,  92  Ky.  95, 
36  Am.  St.  Rep.  449,  17  S.  W.  216,  13  L.  R.  A.  844;  Scofield  v.  Eighth 
School  District,  27  Conn,  499;  Kew  Orleans,  M.  &  C.  E.  R.  Co,  v. 
Dunn,  51  Ala.  128, 

As  an  outgrowth  of  this  analogy,  it  has  been  held  that  the  tax- 
payer may  not  only  sue  to  enjoin  an  illegal  diversion  of  funds,  but 
also  "to  compel  the  restitution  of  public  funds  which  have  been  il- 
legally diverted  and  lodged  in  the  hands  of  persons  not  entitled  to 


617  INJUNCTION;  MUNICIPAL  COEFOKATIONS.         §346 

§  346.  New  York  Rule—The  rule  in  New  York,  al- 
though now  settled  by  statute,  has  gone  through  vari- 
ous changes.  In  the  early  cases  in  the  inferior  courts 
the  right  of  the  tax-payer  to  obtain  relief  was  clearly 
recognized.  It  was  laid  down  that  "when  an  act  is 
clearly  illegal,  and  when  the  necessary  effect  of  such 
act  will  be  to  injure,  or  impose  a  burden  upon  the  prop- 
erty of  any  corporation,  there  is  enough^  according  to 
every  principle  which  has  regulated  the  action  of 
courts  of  equity,  to  warrant  the  interference  of  the 
court."  This  right  of  the  tax-payers  was  supported  on 
the  ground  that  "the  necessary  effect  of  the  act  com- 
plained of  will  be  to  impose  a  burthen  upon  their  real 
estate.  Their  interest,  then,  is  as  certain  and  direct 
as  that  of  a  stockholder  in  a  moneyed  or  other  corpora- 
tion."^^  The  illegal  disposition  of  public  money  or 
property  amounts  to  a  breach  of  trust;  therefore,  an 
injunction  was  held  proper.^^  Somewhat  later  a  nar- 
rower rule  was  adopted,  and  it  was  held  that  a  tax- 
payer in  his  character  as  such,  whose  position  was  not 
different  from  that  of  the  whole  body  of  tax-payers, 
had  no  such  interest  as  entitled  him  to  resort  to  a 
court  of  equity,  to  revise,  restrain,  or  set  aside  the  ac;- 

the  same,  who  have  taken  them  with  notice  of  the  wrongful  diver- 
sion, and  the  governing  body  of  the  subordinate  or  local  government 
will  not  act  or  take  the  necessary  steps  to  have  such  funds  restored": 
Johnson  v.  Black  (Va.),  49  S.  E.  633,  and  cases  cited.  In  strict  ac- 
cordance with  this  principle  is  the  decision  in  a  recent  case  (Eeed  v. 
Cunningham  (Iowa),  101  N.  W.  1055),  where  it  was  held  that  a  tax- 
payer cannot  sue  to  recover  money  illegally  paid  by  a  municipality, 
unless  he  shows  a  demand  upon  the  officers  to  sue  or  that  such  de- 
mand would  be  unavailing. 

26  Christopher  v.  Mayor,  13  Barb.  567. 

27  Christopher  v.  Mayor,  13  Barb.  567;  Milhau  v.  Sharp,  15  Barb. 
393;  Stuyvesant  v.  Pearsall,  15  Barb.  244.  But  to  sustain  an  in- 
junction it  must  appear  that  the  appropriation  was  beyond  the 
power  of  the  corporate  authorities  by  whom  it  was  passed:  Koberts 
V.  Mayor,  5  Abb.  Pr.  41. 


i  346  EQUITABLE  REMEDIES.  618 

tion  of  town  or  municipal  authorities,  upon  an  allega- 
tion that  their  acts  were  unauthorized  and  illegal,  or 
that  unless  arrested  they  would  subject  the  plaintiff  to 
unjust  or  illegal  taxation.^*  This,  as  we  have  seen,  la 
an  application  of  the  rules  relating  to  public  nuisance. 
The  reasoning  upon  which  it  was  supported  is  similar 
to  that  applied  to  nuisance  cases.  "Every  person  may 
legally  question  the  constitutional  validity  of  an  act  of 
the  legislature  which  affects  his  private  rights;  but  if  a 
citizen  may  maintain  an  action  for  such  a  purpose  in 
respect  to  his  rights  as  a  voter  and  tax-payer,  the  courts 
may  regularly  be  called  upon  to  revise  all  laws  which 
may  be  passed,"^^ 

The  rule  was  finally  embodied  in  a  series  of  statutes 
familiarly  known  as  the  Tax-payers'  Acts.^^  These 
statutes  authorize  actions  to  be  maintained  by  tax-pay- 
ers against  officers,  agents,  commissioners,  or  other  per- 
sons acting  in  behalf  of  any  county,  town,  village,  or 
municipal  corporation  ''to  prevent  any  illegal  official 
act  on  the  part  of  any  such  officers,  agents,  commission- 
ers or  other  persons,  or  to  prevent  waste  or  injury  to 
any  property,  funds  or  estate  of  such  county,  town, 
village  or  municipal  corporation."  It  will  be  observed 
that  these  provisions  contemplate  two  classes  of  public 
acts,  viz. :  Acts  in  and  of  themselves  illegal  and  acts 
illegal  because  involving  a  waste  of  public  funds.  This 
distinction  must  be  kept  in  mind,  for  otherwise  the  de- 
cisions will  seem  in  hopeless  conllict. 

In  the  first  class  of  cases,  the  injunction  is  freely 
granted  whenever  it  clearly  appears  that  the  action  is 

28  Doolittle  V.  Supervisors,  18  N.  Y.  155;  Eoosevelt  v.  Draper,  23 
N.  Y.  318;  Kilbourne  v.  St.  John,  59  N.  Y.  21,  17  Am.  Rep.  291. 

29  Doolittle  V.   Supervisors,   18   N.  Y.   155. 

30  Laws  of   1872,   c.  161;   Laws  of  1881,  c.  531;   Laws   of  1891,  c. 
276,  §  8;  Code  Civ.  Proc,  §  1925. 


619  INJUNCTION;  MUNICIPAL  COEPOKATIOJNS.         S  Mtt 

illegal.^^  Thus,  it  has  issued  to  restrain  the  appoint- 
meut  of  officers  under  an  unconstitutional  law,^^  to  re- 
strain the  employment  or  payment  of  persons  who  have 
not  passed  civil  service  examinations,^^  and  to  prevent 
the  payment  of  a  salary  out  of  a  trust  fund  without 
audit.^^  Likewise,  it  is  proper  when  municipal  funds 
are  about  to  be  expended  under  authority  of  an  uncon- 
stitutional law,^^  or  when  a  board  of  supervisors  il- 
legally threatens  to  submit  the  question  of  removal  of 
the  county  seat  to  the  electors^*^  or  to  allow  the  illegal 
assignment  of  a  right  to  construct  a  railway  in  a  high- 
way,^'^  or  to  restrain  a  village  from  contracting  debts 
in  excess  of  the  charter  limit.^* 

In  the  second  class  of  cases,  however,  the  right  to  re- 
lief is  much  narrower.  "The  terms  'waste'  and  'injury' 
used  in  this  statute  comprehended  only  illegal,  wrong- 
ful or  dishonest  official  acts,  and  were  not  intended  to 
subject  the  official  action  of  boards,  officers,  or  munic- 
ipal bodies  acting  within  the  limits  of  their  jurisdic- 
tion and  discretion,  but  which  some  tax-payer  might 
conceive  to  be  unwise,  improvident,  or  based  on  errors 
of  judgment,  to  the  supervision  of  the  judicial  tribu- 
nals."^^ Accordingly,  it  may  be  laid  down  as  a  general 
principle  that  an  injunction  will  not  issue  to  restrain 
waste  or  injury  of  public  property  by  officers  acting  un- 

31  Evans  v.  City  of  Hudson  St,  Commrs.,  84  Hun,  206,  32  N.  Y. 
Supp.  547;  West  v.  City  of  Utica,  71  Hun,  540,  24  N,  Y.  Supp.  1075; 
Beebe  v.  Board  of  Supervisors,  64  Hun,  377,  19  N.  Y.  Supp.  629; 
Bush  V.  O'Brien,  164  N.  Y.  205,  58  N.  E.  106. 

32  Kathbone  v.  Wirth,  150. N.  Y.  459,  45  N.  E.  15,  34  L.  E.  A.  408. 

33  Feck  V.  Belknap,  130  N.  Y.  394,  29  N.  E.  977;  Eogers  v. 
Common  Council,  123  N.  Y.  173,  25  N.  E.  274,  9  L.  E.  A.  579. 

34  Warrin  v.  Baldwin,   105  N.  Y.  534,  12  N.  E.  49. 

35  Mercer  v.  Floyd,  24  Misc.  Eep.   164,  53  N.  Y.  Supp.  433. 

36  Williams  v.  Boynton,   147  N.  Y.  426,  42  N.   E.   184. 

37  Case  V.  Cayuga  Co.,  88  Hun,  59,  34  N.  Y.  Supp.  595. 

38  Gerlach  v.  Brandreth,  34  App.  Div.  197,  54  ISi.  Y.  Supp.  479. 

39  Talcott  v.  City  of  Buffalo,  125  N.  Y.  280,  26  N.  E.  263. 


§  346  EQUITABLE  EEMEDIES.  6a0 

der  their  discretionary  powers  unless  fraud,  collusion, 
corruption  or  bad  faith  can  be  shown.^"  For  instance, 
where  a  statute  provides  that  all  contracts  for  public 
work  shall  be  let  to  the  lowest  and  best  bidder,  a  strong 
case  of  abuse  of  discretion  must  be  shown  before  a 
court  will  interfere  with  a  contract  let  to  a  higher  bid- 
der.'** Thus,  it  has  been  held  that  where  a  telephone 
franchise  has  been  granted  to  a  corporation  for  nothing 
when  a  private  individual  has  offered  fifteen  thousand 
dollars,  no  injunction  should  be  granted  in  the  absence 
of  an  additional  showing,  for  it  might  be  to  the  public 
interest  to  have  the  privilege  awarded  to  the  corpora- 
tion, and  it  therefore  might  be  the  best  bidder.^^  Where, 
however,  a  clear  case  of  fraud  or  abuse  of  discretion  is 

40  Taleott  v.  City  of  Buffalo,  125  N.  Y.  280,  26  N,  E.  263;  Ziegler 
V.  Chapin,  126  N.  Y.  342,  27  N.  E,  471;  Boon  v.  City  of  Utica,  5 
Misc.  Eep.  391,  26  N.  Y.  Supp.  932;  Eogers  v.  O'Brien,  1  App.  Div. 
397,  37  N.  Y.  Supp,  358;  Chittenden  v.  Wurster,  152  N.  Y.  345, 
46  N.  E.  857,  37  L.  R.  A.  809;  Abraham  v.  Meyers,  29  Abb.  N.  C. 
384,  23  N.  Y.  Supp.  226;  New  York  Central  &  H.  R.  R.  Co.  v.  Maine, 
71  Hun,  417,  24  N.  Y.  Supp.  962;  Bell  v.  City  of  Rochester,  61  N.  Y. 
St.  Eep.  721,  30  N.  Y.  Supp.  365;  Wilkins  v.  Mayor  etc.  of  City  of 
New  York,  9  Misc.  Rep.  610,  30  N.  Y.  Supp.  424;  Adamson  v.  Nassau 
E.  R.  Co.,  89  Hun,  261,  34  N.  Y.  Supp.  1073;  Sheehy  v.  McMillan, 
26  App.  Div.  140,  49  N.  Y.  Supp.  1088;  Kittinger  v.  Buffalo  Traction 
Co.,  25  App.  Div.  329,  49  N.  Y.  Supp.  329;  Holtz  v.  Diehl,  26  Misc. 
Rep.  224,  56  N.  Y.  Supp.  841;  Rockefeller  v.  Taylor,  28  Misc.  Rep. 
460,  59  N.  Y.  Supp.  1038;  Press  Pub,  Co.  v.  Holahan,  29  Misc.  Eep. 
684,  62  N.  Y.  Supp.  872;  Keator  v.  Dalton,  29  Misc.  Eep.  692,  62 
N.  Y,  Supp.  878;  Basselin  v.  Pate,  30  Misc.  Eep.  368,  63  N.  Y.  Supp. 
653;  Norris  v.  Wurster,  23  App.  Div.  124,  48  N.  Y.  Supp.  G56; 
Gusthal  V.  Board  of  Aldermen,  23  App.  Div.  315,  48  N.  Y.  Supp. 
652. 

41  Berghoffen  v.  City  of  New  York,  31  Misc.  Eep.  205,  64  N.  Y. 
Supp.  1082;  Kingsley  v.  Bowman,  33  App.  Div.  1,  53  N.  Y.  Supp. 
426;  Terrell  v.  Strong,  14  Misc.  Eep.  258,  35  N.  Y.  Supp.  lOOO. 
Where,  however,  it  is  clearly  illegal  to  let  the  contract  accordino-  to 
certain  requirements,  as  where  one  bidder  is  discriminated  against 
because  he  employs  non-union  labor,  an  injunction  is  proper:  Meyers 
V.  City  of  N.  Y.,  58  App.  Div.  534,  69  N.  Y.  Supp.  529;  Davenport 
V.  Walker,  57  App,  Div.  221,  68  N.  Y.  Supp.  161. 

42  Barhite  v.  Home  TeL  Co.,  50  App.  Div.  25,  63  N.  Y.  Supp.  659. 


621  INJUNCTION;  MUNICIPAL  COKPOliATIONS.     §§  347,348 

made  out,  and  the  result  will  be  a  waste  of  public  funds, 
an  injunction  will  be  granted. 

§  347.  The  Rule  in  Massachusetts. — The  general  equity 
jurisdiction  in  Massachusetts  is  narrow  and  closely 
confined  by  statute.  Consequently,  it  is  held  that  in 
the  absence  of  a  statute,  a  court  has  not  jurisdiction 
to  entertain  a  suit  by  individual  tax-payers  to  restrain 
a  municipality  from  doing  an  illegal  act.^^  It  is  pro- 
vided by  statute,  however,  that  "when  a  town  votes  to 
raise  by  taxation  or  pledge  of  its  credit,  or  to  pay  from 
its  treasury,  any  money  for  a  purpose  other  than  those 
for  which  it  has  the  legal  right  and  power,  the  supreme 
judicial  court  may,  upon  the  suit  or  petition  of  not  less 
than  ten  taxable  inhabitants  thereof,  briefly  setting 
forth  the  cause  of  complaint,  hear  and  determine  the 
same  in  equity."^*  This  statute  is  confined  in  its  ap- 
plication to  cases  coming  within  its  terms ;  and  although 
such  a  case  is  made  out,  relief  will  be  refused  if  it  ap- 
pears that  the  tax-payers  have  been  guilty  of  laches.*^ 

§  348.  The  Rule  in  Ohio. — In  Ohio  the  tax-payer  is 
authorized  to  sue  only  when  it  is  made  the  duty  of 
the  solicitor  of  the  corporation  to  commence  an  action 
and  he,  on  demand,  refuses  to  do  so.  The  statute  pro- 
vides that  the  solicitor  "shall  apply  in  the  name  of  the 
coi^poration  to  a  court  of  competent  jurisdiction  for  an 
order  or  injunction  to  restrain  the  misapplication  of 
funds  of  the  corporation  or  the  abuse  of  its  corporate 
powers,  or  the  execution  or  performance  of  any  contract 

43  Baldwin  v.  Inhab.  of  Wilbraham,  140  Mass.  459,  4  N.  E.  829; 
Steele  v.  Municipal  Signal  Co.,  160  Mass.  36,  35  N.  E.  105;  Prince 
V.  Crocker,  166  Mass.  347,  44  N.  E.  446,  32  L.  K.  A.  610. 

44  Pub.  Stats.  Mass.,  c.  27,  §  129.     See,  also,  Stats.  1847,  c.  37,  §  1. 

45  Tash  V.  Adams,  10  Cush.  252;  Fuller  v.  Inhab.  of  Melrose,  1 
Allen,  166;  Parsons  v.  City  of  Northampton,  154  Mass.  410,  28  N.  E. 
350. 


i  349  EQUITABLE  REMEDIES.  622 

made  in  behalf  of  the  corporation  in  contravention  of  the 
laws  or  ordinance  governing  the  same,  which  was  pro- 
cured by  fraud  or  corruption."^®  In  construing  this, 
the  supreme  court  of  the  state  has  held  that  where  pro- 
ceedings of  a  municipal  corporation  are  unauthorized 
and  void,  either  from  the  want  of  power  or  from  its  un- 
lawful exercise,  and  are  designed  to  raise  a  fund  by 
taxation  to  be  applied  to  the  object  contemplated  by 
such  proceedings,  an  injunction  will  issue.'*^ 

§  349.  Illustrations  of  the  General  Principle;  Municipal 
Aid  Bonds. — Abundant  illustration  of  the  principles  dis- 
cussed in  the  preceding  sections  has  been  afforded  by 
tax-payers'  suits  to  restrain  the  unauthorized  issue  of 
bonds  by  municipalities  in  aid  of  the  construction  of 
railways  or  other  quasi  public  works.^^  A  strong 
ground  for  equitable  interference  in  such  cases  is  found 
in  the  facts  that  such  bonds  are  usually  negotiable  and 
valid  in  the  hands  of  any  bona  fide  purchaser,  and  the 
tax-payer  is  consequently  remediless  unless  the  issuance 
of  the  bonds  can  be  arrested.^^     It  is  not  within  the 

46  Rev.   Stats.   Ohio,    §    1777. 

47  Elyria  Gas  &  Water  Co.  v.  City  of  Elyria,  49  N.  E.  335,  57 
Ohio  St.  374. 

48  Wright  V.  Bishop,  88  111.  302  (railway  aid  subscriptions  pro- 
hibited by  present  constitution  of  Illinois);  Chestnutwood  v.  Hood, 
68  111.  132;  City  of  Madison  v.  Smith,  83  Ind.  502;  City  of  Alma 
V.  Loehr,  42  Kan.  368,  22  Pac.  424  (no  injunction  when  the  bonds 
already  negotiated) ;  Menard  v.  Hood,  68  111.  121  (same) ;  Curteniua 
V.  Hoyt,  37  Mich.  583;  Wagner  v.  Meety,  69  Mo.  150;  State  v. 
Saline  County  Court,  51  Mo.  350,  11  Am.  Rep.  454;  Newmeyer  v. 
Missouri  &  M.  R.  Co.,  52  Mo.  81,  14  Am.  Rep.  394;  North  v.  Platte 
County,  29  Neb.  447,  26  L.  R.  A.  395,  45  N.  W.  692  (relief  defeated 
by  laches);  List  v.  City  of  Wheeling,  7  W.  Va.  501;  Lynch  v.  East- 
ern, L.  F.  &  M.  R.  Co.,  57  Wis.  430,  15  N.  W.  743,  825;  Whiting 
V.  Sheboygan  etc.  R.  Co.,  25  Wis.  167,  3  Am.  Rep.  30;  and  cases  cited 
in    the    following    notes. 

49  Hodgman  v.  Chicago  &  St.  P.  Ry.  Co.,  20  Minn.  48  (Gil.  36); 
Harrington  v.  Town  of  Plainview,  27  Minn.  224,  6  N.  W.  777;  Hamil- 
ton V.  Village  of  Detroit,  85  Minn.  83,  88  N.  W.  419.     "It  can   re- 


623  INJUNCTION;  MUNICIPAL  CORPORATIONS.         §  349 

scope  of  this  work  to  discuss  the  grounds  on  which 
various  attempted  issues  of  railway  aid  bonds  have 
been  held  invalid.  Any  failure  to  comply  substantially 
with  the  terms  of  the  constitution  or  statute  authoriz- 
ing their  issuance  and  regulating  the  manner  thereof 
will  warrant  the  exercise  of  the  restraining  power  of 
a  court  of  equity.^"  Injunction  is  also  properly  granted 
if  the  terms  and  conditions  prescribed  by  the  voters  of 
the  town  in  making  their  grant  of  aid  have  not  been 
complied  with  by  the  recipient^^ 

main  no  longer  a  question  whether  the  restraining  power  of  equity 
should  be  exercised  to  prevent  abuses  of,  and  deviations  from,  the 
Bpecial  power  conferred  upon  the  municipal  officers  in  the  execution 
and  delivery  of  such  negotiable  bonds.  If  the  tax-payers  and  real 
parties  in  interest  have  not  the  remedy  by  injunction,  then  there 
exists  none  whatever  for  the  wrong.  It  becomes  an  evil  wholly 
without  prevention  or  redress  by  any  process  known  to  the  law. 
The  court  is  therefore  of  the  opinion  that  the  writ  of  injunction  will 
issue  in  such  a  case,  not  only  to  give  effect  to  the  safeguards  and 
restraints  imposed  by  the  legislature  or  the  constitution  of  the 
state,  but  also  to  enforce  the  terms  and  conditions  prescribed  by  the 
voters  of  the  town":  Lawson  v.  Schnellen,  33  "Wis.  288,  294.  If  the 
bonds  are  void  in  the  hands  of  innocent  holders,  the  question  whether 
the  existence  of  the  defense  in  suits  at  law  upon  the  bonds  affords 
an  adequate  remedy  so  as  to  preclude  equitable  relief  is  one  on 
which  the  authorities  are  at  variance:  See  post,  chapter  on  Cfin- 
cellation  of  Instruments.  The  better  opinion  seems  to  be,  that 
this  fact  "is  no  sufficient  reason  why  the  tax-payers  of  the  cor- 
poration should  not  have  the  right  to  call  upon  a  court  of  equity 
to  prevent  them  [the  securities]  from  being  issued,  and  thus  avoid 
the  threatened  wrong,  and  provide  a  remedy  which  will  at  once 
reach  the  whole  mischief,  secure  the  rights  of  all,  both  for  the  pres- 
ent and  the  future,  and  thus  avoid  a  multiplicity  of  suits."  Lynch- 
burg &  R.  St.  Ry.  Co.  V.  Danieron,  95  Va.  545,  28  S.  E.  951.  To  the 
effect  that  tax-payers  may  be  estopped  by  acquiescence  to  question 
such  bonds,  see  Schmitz  v,  Zeh,  91  Minn.  290,  97  N.  W.  1049. 

50  See  Hodgman  v.  Chicago  &  St.  P.  R,  Co.,  20  Minn.  48,  20  Gil. 
36;  English  v.  Smock,  34  Ind.  115,  7  Am.  Rep.  215;  Town  of  Clarka-, 
dale  V.  Broadlus,  77  Miss.  667,  28  South.  954  (insufficient  notice); 
Wullenwaber  v.  Dunigan,  30  Neb.  877,  47  N.  W.  420,  13  L.  R.  A. 
811;   Chestnutwood  v.  Hood,  68  111,  132, 

51  Lawson  v.  Schnellen,  33  Wis.  288,  294;  Wagner  v.  Meety,  69 
Mo.   150;   Wullenwaber   v.   Dunigan,   30   Neb.   877,   47   N.   W.   420,   13 


i  350  EQUITABLE  REMEDIES.  6ii4 

§  350.  Injunctions  Against  Exceeding  Constitutional  or 
Statutory  Limits  of  Indebtedness — In  many  of  the  states 
it  is  provided  in  the  constitution,  statutes  or  city  char- 
ters that  no  municipal  corporation  shall  incur  indebted- 
ness in  excess  of  certain  limits.  Tax-payers  have  often 
called  upon  the  courts  to  prevent  a  violation  of  such 
provisions.  As  a  general  rule,  when  it  can  be  shown 
that  action  is  to  be  taken  in  disregard  of  such  limits, 
injunctive  relief  will  be  readily  granted.  Accordingly, 
under  the  provisions  as  they  exist  in  many  states,  when 
it  appears  that  contracts  have  been  let  which  will  en- 
tail an  excessive  expenditure,  an  injunction  will  issue.^^ 
A  like  principle  often  applies  to  the  issuance  of  bonds, 
tlie  courts  holding  that  an  injunction  is  proper  when 
the  amount  of  the  issue  exceeds  the  limit,  and  some- 
times when  the  issue  is  for  the  purpose  of  taking  up  an 
excessive  debt.^^     One  form  of  statute  prohibits  the  in- 

L.  E.  A.  811;  Township  of  Midland  v.  County  Board  of  Gage  County, 
37  Neb.  582,  56  N.  W.  317  (the  railroad  to  which  aid  was  voted 
assigned  to  another  company;  the  county  board  was  enjoined  from 
delivering  the  bonds  to  the  vendee.  "The  electors  of  the  town- 
ship are  entitled  to  stand  on  the  very  letter  of  their  promise.  If 
they  promised  a  donation  to  A  if  he  would  build  a  certain  improve- 
ment, it  does  not  follow  that  B  is  entitled  to  the  donation,  though 
he  builds  the  improvement");  Nash  v.  Baker,  37  Neb.  713,  56  N. 
W.   376    (same   point). 

52  Dorothy  v.  Pierce,  27  Or.  373,  41  Pac.  668;  Wormington  v. 
Pierce,  22  Or,  606,  30  Pac.  450;  O'Malley  v.  Borough  of  Olyphant,  198 
Pa.  St.  525,  48  Atl.  483;  Honaker  v.  Board  of  Education,  42  W,  Va. 
170,  57  Am.  St.  Eep.  847,  24  S.  E.  544,  32  L.  E.  A.  413;  City  of  Spring- 
iield  v.  Edwards,  84  111.  626;  Scott  v.  City  of  Goshen,  162  Ind.  204, 
70  N.  E,  79.  For  an  admirable  discussion  of  the  statutes,  see  Dillon, 
Municipal  Corporations,   §   130ff. 

03  Eogers  v.  Leseur  Co.,  57  Minn.  434,  59  N,  W.  488;  Eice  v. 
City  of  Milwaukee,  100  Wis.  516,  76  N.  W.  341;  Town  of  Winamac 
V.  Huddleston,  132  Ind.  217,  31  N.  E.  561;  Fowler  v.  City  of  Superior, 
85  Wis.  411,  54  N.  W.  800;  Anderson  v.  Orient  Fire  Ins.  Co.,  88  Iowa, 
579,  55  N.  W.  348;  City  of  Council  Bluffs  v.  Stewart,  51  Iowa,  385, 
1  N.  W,  628;  Dunbar  v.  Board  of  Commissioners,  5  Idaho,  407,  49 
I'ac.  409;   Cramptou   v.   Zabriskic,   101   U.   S.   GOJ,   25   L.   E.   A,   1U70; 


625  INJUNCTION;  MUNICIPAL  COKPOBATIONS.         i  351. 

curring  of  indebtedness  for  one  year  in  anticipation  of 
the  revenues  of  future  years.^^  Under  such  provision, 
however,  it  is  not  necessary  to  wait  until  the  revenues 
for  the  current  year  are  collected  before  incurring  the 
debt^^  In  granting  relief  in  all  of  these  cases  the 
courts  will  look  to  the  real  nature  of  the  transaction, 
and  if  the  statute  is  really  violated,  a  shallow  expedient 
for  evasion  will  not  bar  an  injunction.^* 

§  351.  Awarding  Contracts — "Lowest  Bidder" — Discrim- 
inating in  Favor  of  Union  Labor — Another  class  of  cases 
where  the  remedy  is  awarded  freely  is  where  a  contract, 
although  within  the  general  powers  of  the  municipality, 
is  improperly  let  because  of  some  abuse  of  discretion 

City  of  Ottumwa  v.  City  Water  Supply  Co.,  56  C.  C.  A.  219,  119  Fed. 
315;  Purcell  v.  City  of  East  Grand  Forks,  91  Minn.  486,  98  N.  W. 
351.  In  Kyes  v.  St.  Croix  Co.,  108  Wis.  136,  83  N.  W.  637,  an  in- 
junction was  issued  because  the  ordinance  authorizing  the  bonds 
violated  a  statute  in  that  no  provision  was  made  for  providing  funds 
for  paying  the   interest. 

54  Webster  v.  Douglas  Co.,  102  Wis.  181,  72  Am.  St.  Kep.  870,  77 
N.  W.  885,  78  N.  W.  451;  Shinn  v.  Board  of  Education,  39  W.  Va. 
497,  20  S.  E.  604;  Davenport  v.  Kleinschmidt,  6  Mont.  502,  13  Pac. 
249;  Bradford  v.  City  and  County  of  San  Francisco,  112  Cal.  537, 
44  Pac.  912.  And  the  rule  holds,  although  the  money  be  needed 
for  necessary  current  expenses:  Sackett  v.  City  of  New  Albany,  88 
Ind.   473,  45   Am.   Rep.   467. 

55  Hanley  v.  Randolph  Co.  Court,  50  W.  Va.  439,  40  S.  E.  389; 
City  of  Alpena  v.  Kelley,  97  Mich.  550,  56  N.  W.  941.  Sometimes 
it  is  held  proper  for  a  city  to  contract  for  necessities  for  a  period 
covering  a  number  of  years,  provided  the  amount  to  be  paid  annu- 
ally does  not  exceed  the  limit:  City  of  Valparaiso  v.  Gardner,  97 
Ind.  1,  49  Am.  Rep.  416.  But  see  Putnam  v.  City  of  Grand  Rapids, 
5S  Mich.  416,  25  N.  W.  330. 

56  Hoffman  v.  Board  of  Commissioners,  18  Mont.  224,  44  Pac.  973; 
Reynolds  v.  City  of  Waterville,  92  Me.  292,  42  Atl.  553.  In  Ramsey 
V.  City  of  Shelbyville,  26  Ky.  Law  Rep.  1102,  83  S.  W.  116,  an 
injunction  was  issued  restraining  the  enforcement  of  an  ordinance 
accepting  a  library  building  and  agreeing  to  pay  $1,000  per  year 
for  the  support  thereof. 

Equitable  Remedies,  Vol.  I — 40 


§  351  EQUITABLE  iJEMEDlES.  61.'(i 

or  non-compliance  with  law.  Such  questions  often 
arise  under  constitutional  or  other  provisions  requiring 
contracts  to  be  let  to  the  lowest  bidder.  These  pro- 
visions are  of  two  kinds,  and  the  distinction  must  be 
carefully  observed.  Where  it  is  declared  that  con- 
tracts must  be  let  to  the  "lowest  bidder,"  no  discretion 
is  left  to  the  governing  body,  and  if  it  appears  that  a 
higher  bidder  has  been  allowed  the  preference,  an  in- 
junction will  issue  at  the  instance  of  the  tax-payer.^^ 
On  the  other  hand,  under  a  frequent  form  of  the  statute 
declaring  that  contracts  shall  be  let  to  the  "lowest 
responsible  bidder''  or  to  the  "lowest  and  best  bidder," 
a  large  discretion  is  given,  and  an  injunction  will  be 
allowed  only  in  a  clear  case  of  abuse.^*  A  result  of 
these  provisions  is  that  if  certain  described  public  work 
is  about  to  be  done  without  a  call  for  bids,  or  if  a 
proper  advertisement  is  not  made  giving  a  description 
of  the  w*ork  and  what  will  be  required,  or  if  the  con- 
tract is  let  before  the  expiration  of  the  time  designated 
in  the  call  for  bids,  an  injunction  will  issue.^^     This  is 

57  Mueller  v.  Eau  Claire  County,  108  Wis.  304,  84  N.  W.  430; 
Holden  v.  City  of  Alton,  179  111.  318,  53  N.  E.  556   (dictum). 

58  Inge  V.  Board  of  Public  Works,  135  Ala.  187,  93  Am.  St.  Eep. 
20,  33  South.  678;  Diamond  v.  City  of  Mankato,  89  Minn.  48,  93 
N.  W.  911;  Downing  v.  Boss,  1  App.  D.  C.  251;  Keith  v.  Johnson, 
22  Ky.  Law  Eep.  947,  59  S.  W.  487  (a  case  of  awarding  a  franchise 
which  was  required  to  be  given  to  the  highest  and  best  bidder;  the 
principle  is  the  same).  In  Times  Pub.  Co.  v.  City  of  Everett,  9 
Wash.  518,  43  Am.  St.  Eep.  865,  37  Pac.  695,  it  was  held  that  when 
the  contract  is  let  to  other  than  the  lowest  bidder,  the  contracting 
egent  should  judicially  find  the  facts  which,  in  its  judgment,  render 
the  apparently  lowest  bid  not  the  lowest  in  fact. 

59  Follmer  v.  Nuckolls  Co.,  6  Neb.  204;  Littler  v.  Jayne,  124 
111.  123,  16  N.  E.  374;  Manly  Bldg.  Co.  v.  Newton,  114  Ga.  245,  40 
8.  E.  274;  Schumm  v.  Seymour,  24  N.  J.  Eq.  143;  Jones  Bros.  Hard- 
ware Co.  V.  Erb,  54  Ark.  645,  17  S.  W.  7,  13  L.  E.  A.  353;  Mazet  v. 
City  of  Pittsburg,  137  Pa.  St.  548,20  AtL  693;  Mayor  etc.  v.  Keyser, 
72  Md.  106,  19  Atl.  706;  Woodruff  v.  Welton  (Neb.),  97  N.  W.  1037. 
See,  also,  Diamond  v.  City  of  Mankato,  89  Minn.  48,  93  N.  W.  911; 


627  INJUNCTION;  MUNICIPAL  CORPORATIONS.         S  35A 

a  necessary  consequence,  for  otherwise  the  statutes 
could  be  easily  evaded.  The  motive  of  the  tax-payer  in 
bringing  the  suit  is  immaterial,  provided  he  can  show 
a  case  of  injury  to  himself  as  a  tax-payer.  Conse- 
quently, an  unsuccessful  bidder  may  be  and  often  is 
the  plaintiff.«» 

Cases  involving  the  same  or  similar  principles  arise 
when  a  town  or  city,  by  ordinance  or  otherwise,  at- 
tempts to  discriminate  in  favor  of  union  labor.  Where 
there  is  a  provision  requiring  contracts  to  be  let  abso- 
lutely to  the  lowest  bidder,  the  principle  stated  above 
of  course  controls.^^  Where  discretion  is  given,  proof 
of  the  fact  that  discrimination  has  been  made  for  that 
reason  will  be  sufficient  to  show  abuse  of  discretion 
and  to  warrant  an  injunction.^^  And  even  when  there 
is  no  provision  as  to  bidders,  if  a  contract  is  let  un- 
der an  ordinance  declaring  that  contracts  shall  be  let 
only  with  union  labor  provisions,  injunctive  relief  will 
be  awarded.*'^  The  theory  is  that  the  ordinance  be- 
ing void,  any  contract  made  under  it  must  also  of 
necessity  be  void.  The  reasons  for  holding  the  ordi- 
nance void,  and  which  are  additional  to  those  which 
apply  to  tax-payers'  suits  in  general,  are  that  an  un- 
lawful discrimination  results,  and  that  a  monopoly  is 
fostered ;  both  of  these  results  are  contrary  to  the  policy 
of  the  law. 

Le  Tourney  v.  Hugo,  90  Minn.  420,  97  N.  W.  115;  City  of  Chicago 
V.  Mohr  (111.),  74  N.  E.  1056  (permitting  changes  to  be  made  after 
bids  were  opened). 

60  Times  Pub.  Co.  v.  City  of  Everett,  9  Wash.  518,  43  Am.  St.  Rep. 
865,  37  Pac.  695;  Holden  v.  City  of  Alton,  179  111.  318,  53  N.  E. 
556;   Chippewa  Bridge  Co.  v.  City  of  Durand   (Wis.),  99  N.  W.  603. 

61  Holden  v.  City  of  Alton,  179  111.  318,  53  N.  E,  556  (dictum). 

62  Holden  v.  City  of  Alton,  179  111.  318,  53  N.  E.  556;  Adams  v. 
Brenan,  177  111.  194,  69  Am.  St.  Rep.  222,  52  N.  E.  314,  42  L.  K.  A. 
718. 

63  City  of  Atlanta  v.  Stein,  111  Ga.  789,  36  S.  E.  932,  51  L.  E.  A. 
335. 


S  352  EQUITABLE  EEMEDIES.  628 

§  352.  Injunctions  Against  Removal  of  County  Seats. — 
Tax-pajers  frequently  have  sought  to  invoke  the  aid  of 
equity  to  prevent  the  removal  of  a  county  seat.  In  a 
sense,  this  is  a  political  matter,  but  on  the  other  hand, 
it  may  involve  a  waste  of  a  large  sum  of  money  and 
thus  be  a  great  and  direct  injury  to  the  tax-payers.  The 
tiendency  of  the  modern  authorities,  therefore,  is  to 
allow  an  injunction  when  it  appears  that  the  illegal 
removal  will  result  in  a  waste  of  public  funds.^*  Ap- 
plying this  principle,  injunctions  are  allowed  when  the 
election  authorizing  the  removal  is  void  because  of  fail- 
ure to  take  the  proper  preliminary  steps  or  because 
not  authorized  by  statute.®*^  For  the  same  reason, 
when  the  removal  is  legal,  an  injunction  will  issue  to 

64  In  Stuart  v.  Bair,  8  Baxt.  141,  this  principle  la  laid  down. 
In  Lanier  v.  Padgett,  18  Fla.  842,  the  tax-payers  were  allowed  relief 
because  the  "proceeding  might  involve  them  and  the  whole  people 
of  the  county  in  great  expense  and  confusion,  and  jeopardize  the 
titles  to  property."  See,  also,  Eickey  v.  Williams,  8  Wash.  479, 
36  Pac.  480;  Way  v.  Fox,  80  N.  W.  405,  109  Iowa,  340;  Board  of 
Supervisors  y.  Buckley  (Miss.),  38  South.  104;  Lindsay  v.  Allen 
(Tenn.),  82  S.  W.  178;  Mitchell  v.  Lasseter,  114  Ga.  275,  40  S.  E. 
287. 

65  Eickey  v.  Williams,  8  Wash,  479,  36  Pac,  480;  Todd  v.  Eustad, 
43  Minn.  500,  46  N.  W.  73,  In  some  jurisdictions  it  is  held,  con- 
trary to  the  general  rule  as  to  elections,  that  an  injunction  will  issue 
to  prevent  the  calling  or  holding  of  an  unauthorized  county  seat 
•lection:  Solomon  v.  Fleming,  34  Neb.  40,  51  N.  W.  304;  Streissguth 
v.  Geib,  67  Minn.  360,  69  N.  W,  1097.  The  better  rule  would  seem 
to  be  that  the  equity  court  should  not  interfere  with  the  election. 
When  the  court  takes  jurisdiction  in  such  matters  it  is  asserting  a 
right  to  hear  election  contests,  which  are  not  a  subject  of  equitable 
•ognizance:  People  v.  Board  of  Supervisors,  75  Cal,  179,  16  Pac. 
776;  Caruthers  v.  Harnett,  67  Tex,  127,  2  S.  W,  523.  See  chapter 
&a  Public  Officers,  ante,  §  331,  In  Washington  it  is  held  that  an 
injunction  will  issue  to  prevent  removal  when  there  has  been  fraud 
is  counting  the  votes:  Krieschel  v.  Board  of  Snohomish  County 
Commissioners,  12  Wash.  428,  41  Pac.  186;  but  mere  errors  in  count- 
ing will  not  be  sufficient  to  warrant  the  relief:  Parmeter  v.  Bourne, 
8  Wash.  45,  35  Pac.  586,  757. 


629  INJUNCTION;  MUNICIPAL  COKPORATIONS.        §  353 

prevent  the  erection  of  an  expensive  county  building 
at  the  old  site.^* 

§  353.    Miscellaneous  Illustrations Whenever  a  city's 

money  is  about  to  be  paid  or  used  for  a  purpose  not 
authorized  by  law  or  under  a  contract  ultra  vires  for 
any  reason,  or  is  to  be  paid  wrongfully,  a  tax-payer 
will  be  allowed  an  injunction.^'^  As  a  common  example, 
such  relief  will  be  granted  when  public  funds  are  to  be* 
used  ultra  vires  for  purposes  of  entertainment  of  vis- 
es Wells  V.  Ragsdale,  102  Ga.  53,  29  S.  E.  165. 

67  A  tax-payer  has  been  allowed  an  injunction  in  the  following 
coses,  the  purposes  for  which  the  money  was  intended  being  held 
to  be  improper:  Against  paying  an  attorney  under  an  illegal  con- 
tract for  the  collection  of  taxes:  Storey  v.  Murphy,  9  N,  D.  115, 
81  N.  W.  23;  Grannis  v.  Board  of  Commissioners,  81  Minn.  55,  83 
N.  W.  495;  Frederick  v.  Douglas  Co.,  96  Wis.  411,  71  N.  W.  798; 
but  not  to  annul  the  contract:  Board  of  Commissioners  of  Wayne 
Co.  V.  Dickinson,  153  Ind.  682,  53  N.  E.  929.  Against  spending 
money  ultra  vires  for  a  dispensary  for  the  sale  of  liquor:  Leesburg 
V.  Putnam,  103  Ga.  110,  68  Am.  St.  Eep.  80,  29  S.  E.  602;  McCullough 
V.  Brown,  41  S.  C.  220,  19  S.  E.  458,  23  L,  E.  A.  410.  Against  pay- 
ing a  water  company,  under  an  illegal  contract  extending  over  a 
number  of  years:  Flynn  v.  Little  Falls  E.  &  W.  Co.,  74  Minn.  180, 
77  N.  W.  38,  78  N.  W.  106.  Against  paying  a  reward,  ultra  vires, 
for  the  arrest  of  a  defaulting  official:  Patton  v.  Stephens,  14  Bush, 
324.  Against  illegally  using  highway  fund  for  waterworks:  Savidge 
V.  Village  of  Spring  Lake,  112  Mich.  91,  70  N,  W.  425.  Against 
paying  a  collusive  judgment:  Beyer  v.  Town  of  Crandon,  98  Wis. 
306,  73  N.  W.  771;  Nevill  v.  Clifford,  55  Wis.  161,  12  N.  W.  419. 
Against  contract  making  an  illegal  exemption  from  taxation:  Altgelt 
V.  City  of  San  Antonio,  81  Tex.  447,  17  S.  W.  75,  13  L.  E.  A.  383. 
Against  publishing  delinquent  tax  list  in  paper  not  a  newspaper: 
Sinclair  v.  Commrs.  of  Winona  Co.,  23  Minn.  404,  23  Am.  Eep.  694. 
See  Dillon  on  Municipal  Corporations,  §  914ff.  But  see  Normand  v. 
Otoe  Co.,  8  Neb.  18.  In  general,  see  Daviess  Co.  v.  Goodwin,  25 
Ky.  Law  Eep.  1081,  77  S.  W.  185.  For  an  instance  of  the  remedy 
of  cancellation  granted  at  suit  of  a  tax-payer,  see  Bowman  v.  Frith 
(Ark.),  o4  S.  W.  709.  By  statute  in  Wisconsin,  a  tax-payer  has  been 
allowed  to  maintain  suit  to  recover  money  paid  by  a  county  with- 
out authority:  Estcll  v.  Knight,  117  Wis.  540,  94  N.  W.  290.  See, 
also,  ante,  end  of  note  25. 


S  353  EQUITABLE  KEMEDIES.  630 

itors  or  to  aid  charitable  associations.^^  Frequently, 
statutes  declare  that  public  officers  shall  not  be  inter- 
ested in  public  contracts,  and  under  such  provisions, 
an  injunction  will  be  granted  if  a  violation  is  shown. ^^ 
Likewise,  where  the  object  is  illegal,  an  injunction  will 
issue  to  prevent  the  issuance  or  payment  of  warrants,'^*^ 
or  the  execution  of  a  mortgage  or  bonds.'^^ 

Upon  the  same  principle,  a  tax-payer  may  enjoin  the 
improper  use  of  public  propertyJ^  Such  use  involves 
both  a  breach  of  trust  and  a  direct  pecuniary  injury. 
Often  it  results  in  more — in  a  direct  inconvenience  to 
the  tax-payer. 

68  Black  V.  Common  Council  of  City  of  Detroit,  119  Mich.  571,  78 
N.  W.  660;  Austin  v.  Coggeshall,  12  R.  I.  329,  34  Am.  Rep.  648; 
State  V.  City  of  New  Orleans,  50  La.  Ann.  880,  24  South.  666. 

69  McElhinney  v.  City  of  Superior,  32  Neb.  744,  49  N.  W.  705; 
Weitz  V.  Independent  Dist.  of  Des  Moines,  87  Iowa,  81,  54  N.  W. 
70;  Alexander  v.  Johnson,  144  Ind.  82,  41  N.  E.  811;  Miller  v. 
Sullivan,  32  Wash.  115,  72  Pac.  1022;  Nuckols  v.  Lyle,  8  Idaho,  589, 
70  Pac.  401. 

70  Ackerman  v.  Tbummel,  40  Neb.  95,  58  N.  W.  738;  Russell  v, 
Tate,  52  Ark.  541,  20  Am.  St.  Rep.  193,  13  S.  W.  130,  7  L.  R.  A.  180. 

71  Vaughn  v.  Board  of  Commissioners  of  Forsyth  Co.,  118  N.  C. 
636,  24  S.  E.  425;  Bolton  v.  City  of  Antonio  (Tex.  Civ.  App.),  21 
S.  W.  64;  Mayor  etc,  v.  Gill,  31  Md.  375. 

72  Thus,  it  has  been  held  that  a  tax-payer  may  enjoin  the  use  of 
a  school  building  for  religious  or  other  private  purposes:  Scofield 
V.  Eighth  School  Dist.,  27  Conn.  499;  Lewis  v.  Bateman,  26  Utah, 
434,  73  Pac.  509;  Spencer  v.  School  Dist.,  15  Kan.  259,  22  Am.  Rep. 
268.  In  the  first  case  the  court  said:  "It  is  quite  obvious  that 
more  or  less  injury  mast  arise,  not  merely  from  the  use  of  the 
building  and  its  furniture,  but  from  deranging  the  furniture,  books 
and  stationery  belonging  to  the  school,  and  by  materially  increasing 
the  risk  of  destroying  the  house  by  fire."     "But  the  value   of  the 

right  ....  cannot  be  measured  by  the  mere  pecuniary  injury 

It  is  more  correct  to  estimate  it  by  the  value  of  the  building,  if  it 
was  to  b«  rented  for  the  purposes  for  which  it  is  used  gratuitously." 
"And  we  know  of  no  principle  that  will  justify  the  misappropriation 
of  trust  property  for  any  purpose  whatever."  See,  also,  Nerlien 
V.  Village  of  Brooten  (Minn.),  102  N.  W.  867  (use  of  town  hall  for 
commercial   purposes    enjoined).     Likewise,    an    injunction    will    is?no 


631  INJUNCTION;   MUNICIPAL   CORPOKATIONS.         §  o53 

In  some  jurisdictions  the  courts  have  refused  to  en- 
join an  act  manifestly  illegal  when  it  has  seemed  more 
inequitable  to  grant  than  to  refuse  an  injunction.'^* 
Such  cases  are  of  rare  occurrence,  and  must  depend  upon 
their  own  facts.  Occasionally  the  doctrine  of  laches 
is  applied  to  these  suits  ;^*   but  it  would  seem    that 

to  prevent  the  unlawful  removal  of  a  school-house:  McLaiu  v.  Mari- 
cle,  60  Neb.  353,  83  N.  W.  85.  But  see  Parody  y.  School  Dist.,  15 
Neb.  514,  19  N.  W.  633.  A  tax-payer  may  enjoin  a  county  from 
building  a  court-house  on  a  city  lot  dedicated  to  park  purposes, 
although  the  city  consents:  Mclntyre  v.  Board  of  Commissioners  of 
El  Paso  Co.,  15  Colo.  App.  78,  61  Pac.  237.  He  may  also  enjoin  the 
illegal  sale  of  public  property:  Willard  v.  Comstock,  58  Wis.  565, 
46  Am.  Eep.  657,  17  N.  W.  401.  See  Davenport  v.  Buffington,  97 
Fed.  234,  38  C.  C.  A.  453.  In  Sherburne  v.  City  of  Portsmouth  (N. 
H.),  58  Atl.  38,  a  tax-payer  was  allowed  an  injunction  to  restrain  a 
common  council  from  granting  the  use  of  a  public  common  to  in- 
dividuals for  a  baseball  park.  .  See,  however,  Davidson  v.  Mayor 
etc.  of  Baltimore,  96  Md.  509,  53  Atl.  1121,  where  it  was  held  that 
a  tax-payer  cannot  enjoin  officers  from  changing  use  of  a  school 
building  from  an  English-German  school  to  a  colored  high  school, 
without  showing  special  damage.  See,  also.  Amusement  Syndicate 
Co.  V.  City  of  Topeka,  68  Kan.  801,  74  Pac.  606;  Bryant  v.  Logan 
(W.  Va.),  49  S.  E.  21  (tax-payer  cannot  enjoin  unless  specially  in- 
jured); Village  of  Eiverside  v.  MacLean,  210  111.  308,  102  Am.  St, 
Eep.  164,  71  N.  E.  408  (owners  of  lots  adjoining  a  tract  dedicated 
for  a  public  park  may  enjoin  the  municipality  from  constructing  a 
highway  through  the  park,  without  showing  special  damage),  citing 
many   cases. 

73  Ebert  v.  Langlade  Co.,  107  Wis.  569,  83  N.  W.  942;  Brasher  v. 
Miller,  114  Ala.  485,  21  South.  467;  Farmer  v.  City  of  St.  Paul,  65 
Minn.  176,  67  N.  W.  990,  33  L.  E.  A.  199.  In  this  case  the  court 
eaid:  "While  it  is  true  that,  upon  grounds  of  sound  public  policy, 
the  doctrine  of  ult7-a  vires  is  applied  with  greater  strictness  to 
municipal  than  to  private  corporations,  and  that  in  this  state  a 
tax-payer  may  enjoin  an  unauthorized  appropriation  of  public  money, 
yet  in  cases  where  the  proposed  appropriation  is  only  technically 
illegal,  and  it  would  be  more  inequitable  to  grant  the  injunction 
than  to  refuse  it,  it  may  be  refused."  In  Appleton  Water  Worka 
Co.  V.  City  of  Appleton,  116  Wis.  363,  93  N.  W.  262,  it  was  said 
that  this  principle  should  be  considered  only  in  cases  of  extreme 
doubt. 

74  Tash  V,  Adams,  10  Cush.  252;  Mahou  v.  City  of  New  Orleans, 
52  La.   Ann.   1226,  27   South.   650. 


{  354  EQUITABLE  EEMEDIES.  632 

generally  the  doctrine  is  inapplicable,  especially  if  the 
tax-payer  acts  promptly  upon  receiving  information.'^^ 
An  injunction,  it  has  been  held,  will  not  be  granted 
to  a  tax-payer  to  restrain  the  enforcement  of  a  void 
municipal  ordinance,  when  the  case  is  not  brought 
within  the  principles  laid  down  above,"^* 

§  354.  Relief  Against  Ordinances  Injuring  the  Individ- 
ual in  a  Capacity  Other  than  that  of  Tax-payer. — The  prin- 
ciple is  generally,  but  not  universally,  accepted,  that 
the  enforcement  of  a  void  municipal  ordinance  may  be 
enjoined,  where  an  injunction  is  necessary  for  the  pur- 
pose of  avoiding  a  multiplicity  of  suits,^^  or  of  prevent- 

78  Storey  v.  Murphy,  9  N.  D.  115,  81  N.  W.  23;  Black  v.  Common 
CouncU  of  City  of  Detroit,  119  Mich.  571,  78  N.  W.  660;  Austin  v. 
Coggeshall,  12  E.  I.  329,  34  Am.  Kep.  648. 

76  Field  V.  Village  of  Western  Springs,  181  Dl.  186,  54  N.  E.  929. 

77  Davis  V.  Fasig,  128  Ind.  271,  27  N.  E.  726;  City  of  Eushville 
V.  Eushville  Natural  Gas  Co.,  132  Ind.  575,  28  N.  E.  853,  15  L.  E.  A. 
321;  Brown  v.  Catlettsburg,  11  Bush  (Ky.),  435;  Shinkle  v.  City 
of  Covington,  83  Ky,  420;  City  of  Newport  v,  Newport  &  C.  Bridge 
Co.,  90  Ky.  193,  13  S.  W.  720,  8  L.  E.  A.  484;  South  Covington  etc. 
Ky.  Co.  v.  Berry,  93  Ky.  43,  40  Am.  St.  Eep.  161,  18  S.  W.  1026,  15 
L.  E.  A.  604;  Sylvester  Coal  Co.  v.  City  of  St.  Louis,  130  Mo.  323, 
51  Am.  St.  Eep.  566,  32  S.  W.  649;  Third  Ave.  E.  E.  Co,  v.  Mayor, 
54  N.  Y.  159;  United  Traction  Co,  v.  City  of  Watervliet,  35  Misc. 
Eep.  392,  71  N.  Y,  Supp.  977. 

In  these  cases  the  multiplicity  of  suits  sought  to  be  avoided  con- 
sisted in  numerous  prosecutions  of  the  single  complainant  or  hia 
servants  for  numerous  violations  of  the  invalid  ordinance.  It  was 
once  held  in  New  York  (West  v.  Mayor,  10  Paige,  539)  that  equity 
would  not  assume  jurisdiction  in  this  class  of  cases  until  the  com- 
plainant had  established  his  right  by  a  successful  defense  in  at  least 
one  of  the  actions  at  law.  See  1  Pom,  Eq.  Jur.,  §  254,  note,  where 
it  is  shown  that  this  case  is  irreconcilable  with  the  later  case  of 
Third  Ave.  E.  E.  Co.  v.  Mayor,  54  N.  Y.  159.  It  is  held  elsewhere 
that  the  rule  in  West  v.  Mayor  cannot  apply  under  the  blending  of 
law  and  equity  in  the  code  system:  Sylvester  Coal  Co.  v.  City  of 
St.  Louis,  130  Mo.  323,  51  Am.  St.  Eep.  566,  32  S.  W.  649.  It  is 
followed,   however,   in  Illinois:    Chicago,   B.   &   Q.   E.   Co.   v.   City   of 


633  INJUNCTION;   MUNICIPAL   CORPORATIONS.         S   354 

ing  irreparable  injury  to  private  riglits.''^*  Multiplicity 
of  suits  may  be  a  ground  for  the  injunction  either  when 
a  large  group  of  persons  are  threatened  with  prosecu- 
tion for  violation  of  the  invalid  ordinance,'^^  or  numer- 
ous prosecutions  are  begun  or  threatened  against  a 
single  person.*"  Some  cases,  however,  deny  the  right 
to  equitable  interference,  on  the  ground  that  the  com- 

Ottawa,  148  111.  397,  36  N.  E.  80;  Poyer  v.  Tillage  of  Des  Plaines,  123 
111.  Ill,  5  Am.  St.  Rep.  494,  13  N.  E,  819. 

It  seems  that  when  the  question  is  not  of  the  validity  of  the 
ordinance,  but  of  its  application  to  the  complainant,  injunction  will 
not  be  granted  unless,  perhaps,  to  avoid  a  multiplicity  of  prosecu- 
tions: Ludlow  &  C.  Coal  Co,  v.  City  of  Ludlow,  102  Ky.  354,  43  S.  W. 
435. 

78  Des  Moines  City  R.  Co.  v.  City  of  Des  Moines,  90  Iowa,  770, 
58  N.  W.  906,  26  L.  R.  A.  767;  McFarlain  v.  Town  of  Jennings,  106 
La.  541,  31  South,  62;  Coast  Co,  v.  Borough  of  Spring  Lake  (N.  J.), 
36  Atl,  21;  United  Traction  Co,  v.  City  of  Watervliet,  35  Misc.  Rep. 
392,  71  N,  Y,  Supp.  977;  City  of  Austin  v,  Austin  City  Cem- 
etery Assn.,  87  Tex.  330,  47  Am,  St,  Rep.  114,  28  S.  W.  528:  Bristol 
Door  &  Lumber  Co.  v,  Bristol,  97  Va.  304,  75  Am.  St.  Rep.  783,  33  S. 
E,  588;  City  of  Atlanta  v.  Gate  City  Gaslight  Co.,  71  Ga,  106; 
Cicero  Lumber  Co,  v.  Town  of  Cicero,  176  111.  9,  68  Am.  St.  Rep. 
155,  51  N.  E,  758,  42  L.  R,  A.  696;  City  of  Roanoke  v.  Boiling,  101 
Va.  182,  43  S.  E,  343;  Old  Colony  Trust  Co.  v.  City  of  Wichita,  123 
Fed,  762;  Glucose  Refining  Co.  v.  City  of  Chicago  (111.),  138 
Fed,  209.  In  Maryland,  any  party  whose  interests  are  injuriously 
affected  by  a  void  ordinance  may  enjoin  its  enforcement:  City  of 
Baltimore  v,  Radecke,  49  Md.  217,  33  Am.  Rep.  239  (ordinance  within 
general  grant  of  power,  but  clearly  unreasonable  and  oppressive) ; 
Deems  v.  City  of  Baltimore,  80  Md.  164,  45  Am.  St,  Rep.  339,  30 
Atl.  648,  26  L,  R.  A.  54  (milk  inspection  ordinance).  An  injunction 
will  not  issue  when  the  enforcement  will  amount  to  a  mere  trc<^pnss 
for  which  there  is  an  adequate  remedy  at  law:  Town  of  Orange  City 
V,   Thayer   (Fla,),  34  South.   573. 

79  City  of  Chicago  v.  Collins,  175  111,  445,  67  Am.  St.  Rep.  1.'l:4, 
51  N.  E.  907,  49  L,  R.  A,  408;  Wilkie  v.  City  of  Chicago,  188  III. 
444,  80  Am,  St.  Rep.  182,  58  N,  E,  1004;  Glucose  Refining  Co.  v.  City 
of  Chicago,  138  Fed.  209;  Spiegler  v.  City  of  Chicago  (111.),  74  N. 
E,  718.  See  Pom.  Eq.  Jur.,  §  254  et  seq.,  where  the  subject  ia  ex- 
amined at  large. 

80  See  cases  fsupru,  note  77. 


§  354  EQUITABLE  REMEDIES.  634 

plainant's  defense  to  the  prosecution  affords  him  an 
adequate  remedy  at  law.^^ 

Relief  has  been  more  frequently  denied  against  the 
enforcement  of  penal  ordinances  on  the  ground  that  the 
proceedings  for  their  enforcement  were  of  a  criminal 
or  quasi  criminal  nature,  and  that  equity  declines  to  in- 
terfere with  the  administration  of  the  criminal  laws.^^ 

81  See  Devron  v.  First  Municipality,  4  La.  Ann.  11;  Levy  v.  City 
of  Sbreveport,  27  La.  Ann.  620;  Cohen  v.  Commissioners  of  Golds- 
Loro,  77  N,  C.  2;  Wardens  v.  Washington,  109  N.  C,  21,  13  S.  E. 
700;  Scott  V.  Smith,  121  N.  C.  94,  28  S.  E,  64.  See,  also,  the  Illinois 
cases  supra,  in  note  77. 

Eeasons  for  this  view  are  stated  with  some  fullness  in  the  opinion 
from  which  the  following  extract  is  taken:  "If  the  ordinance  is 
invalid,  we  cannot  assume  that  the  court  in  which  appellee  may  be 
tried  for  its  violation  will  not  so  hold,  if  this  question  is  presented; 
nor  can  we  presume  that,  if  he  is  acquitted  on  this  ground,  the  offi- 
cer of  the  city  will  continue  to  harass  him  with  further  arrests; 
so  that,  if  his  own  contention  is  true,  he  is  in  no  danger  of  suffering 
the  irreparable  injury  of  which  he  complains;  nor  would  he,  under 
such  circumstances,  be  subjected  to  a  multiplicity  of  suits.  It  would 
doubtless  be  convenient  for  appellee  to  have  the  judgment  of  the 
court  upon  the  validity  of  the  ordinance  before  submitting  himself 
to  liability  for  accumulated  penalties;  but,  if  arrested  and  con- 
victed, and  he  chooses  to  take  the  chances  of  ultimately  defeating 
the  ordinance  upon  the  ground  of  its  invalidity,  that  is  no  ground 
for  equitable  interference":  City  of  Denver  v.  Beede,  25  Colo.  172, 
54  Pac.  624.  To  the  present  writer,  the  logic  of  the  last  sentence 
seems  as  faulty  as  its  grammar.  At  all  events,  deliverance  from 
this  too  common  form  of  persecution  is  often  much  more  than  a 
matter  of  "convenience"  to  its  victim,  as  the  facts  of  reported  cases 
abundantly   show. 

82  Poulk  V.  City  of  Sycamore,  104  Ga.  24,  30  S.  E.  417,  41  L.  R. 
A.  772  (ordinance  penalizing  sale  of  intoxicating  liquors) ;  Phillips 
V.  Mayor,  61  Ga.  386  (same);  Garrison  v.  City  of  Atlanta,  68  Ga.  64; 
Mayor  etc.  of  City  of  Moultrie  v.  Patterson,  109  Ga.  370,  34  S.  E. 
600;  Coykendall  v.  Hood,  36  App.  Div.  558,  55  N.  Y.  Supp.  718;  Wade 
V.  Nunnelly,  19  Tex.  Civ.  App.  256,  46  S.  W.  668.  See,  however, 
Sylvester  Coal  Co.  v.  City  of  St.  Louis,  130  Mo.  323,  51  Am.  St. 
Kep.  566,  32  S.  W.  649,  holding  that  "the  doctrine  that  criminal 
statutes  cannot  be  tested  or  their  enforcement  restrained  in  the 
civil   courts   has  no   application   to   the   case.     Municipal   ordinances, 


635  INJUNCTION;    MUNICIPAL    COKPOEATIONS.       §  354 

It  is  believed,  however,  that  in  applying  this  rule  the 
courts  have  sometimes  lost  sight  of  its  qualification, 
which  is  as  well  settled  as  the  rule  itself,  that  a  court 
of  equity  may  in  a  proper  case  interfere  by  injunction 
to  restrain  any  act  or  proceeding,  whether  connected 
with  crime  or  not,  which  tends  to  the  destruction  or 
impairment  of  property  or  property  rights.^^ 

The  general  principle  stated  at  the  beginning  of  this 
section  has  found  a  frequent  application,  of  late  years, 
in  the  cases  where  an  injunction  has  been  sought 
against  the  enforcement  or  passage  of  ordinances  fixing 
the  rates  of  gas  companies,  water  companies,  or  other 
"public  utilities,"  or  other  municipal  legislation  impair- 
ing the  obligation  of  the  contract  contained  or  implied 

though  penal,  are  not  criminal  statutes.  They  are  quasi  criminal 
in  form,  but  not  so  regarded  in  procedure."  See,  also,  post,  chapter 
XXI. 

83  Glucose  Kefining  Co.  v.  City  of  Chicago  (111.),  138  Fed.  209 
(smoke  ordinance) ;  United  Traction  Co.  v.  City  of  Watervliet, 
35  Misc.  Rep.  392,  71  N.  Y.  Supp.  977  (against  enforcement  of  ordin- 
ance limiting  speed  of  street-cars  to  six  miles  an  hour) ;  Dobbins  v. 
City  of  Los  Angeles,  195  U.  S.  223,  25  Sup.  Ct.  18;  City  of  Atlanta  v. 
Gate  City  Gaslight  Co.,  71  Ga.  106  (against  enforcement  of  ordinance 
tending  to  the  destruction  of  a  franchise  for  the  use  of  streets  by  a 
gas  company) ;  City  of  Austin  v.  Austin  City  Cemetery  Assn.,  87  Tex. 
330,  47  Am.  St.  Eep.  114,  28  S.  W.  528.  In  the  last  case  an  injunction 
was  sought  by  a  cemetery  association  against  the  enforcement  of  an 
ordinance  making  it  a  "misdemeanor"  for  anyone  to  bury  human 
bodies  in  certain  territory  comprising  the  plaintiff's  burial  ground. 
The  court  says  in  part  in  its  able  opinion:  "It  is  clear  to  us  ...  . 
that  the  effect  of  the  ordinance  is  such  that,  if  its  enforcement  be 
not  restrained,  it  may  result  in  a  total  destruction  of  the  value  of 

appellee's  property  for  the  purpose  for  which  it  was  acquired 

No  one,  we  apprehend,  without  some  considerable  inducement,  will 
do  an  act  which  may  cause  him  to  be  arrested  and  prosecuted,  how- 
ever clear  he  might  be  in  his  own  mind  that  the  act  constituted  no 
violation  of  the  criminal  law As  long  as  the  ordinance  re- 
mains undisturbed,  it  acts  in  terrorem,  and  practically  accomplishes 
a  prohibition  against  the  burial  of  the  dead  within  the  limits  of  the 
city  of  Austin,  save  in  the  excepted  localities,"  etc 


§  354  EQUITABLE  EEMEDIES.  63(i 

in  the  complainant's  franchise,  or  conflicting  with  other 
constitutional  guaranties.  These  cases  chiefly  have  to 
do  with  questions  of  constitutional  law;  but  the  appro- 
priateness of  the  remedy  by  injunction  seems  to  have 
been  conceded  in  most  of  them,^*  and  has  been  expressly 
decided  in  many.^^ 

84  See  Capital  City  Gaslight  Co.  v.  City  of  Des  Moines,  72  Fed. 
829;  Cleveland  City  Ey.  Co.  v.  City  of  Cleveland,  94  Fed.  385;  Loa 
Angeles  City  Water  Co.  v.  City  of  Los  Angeles,  103  Fed.  711,  738,  etc.; 
Penn  Mutual  Life  Ins.  Co.  v.  City  of  Austin,  168  U.  S.  685,  18  Sup. 
Ct.  223  (right  to  injunction  lost  by  five  years'  laches);  Spring  Valley 
Water  Works  v.  San  Francisco,  82  Cal,  286,  16  Am.  St.  Eep.  116, 
22  Pac.  910,  1046,  6  L.  E.  A.  756;  and  eases  cited  in  Los  Angeles 
City  Water  Co.  v.  City  of  Los  Angeles,  103  Fed.  711,  716.  See,  also, 
Little  Falls  Elect,  &  Water  Co.  v.  City  of  Little  Falls,  102  Fed.  663; 
Spring  Valley  Water  Works  v.  City  and  County  of  San  Francisco, 
124  Fed.  575;  Palatka  Water  Works  v.  City  of  Palatka,  127  Fed.  161; 
City  of  Chicago  v.  Eogers  Park  Water  Co.,  214  111.  212,  73  N.  E. 
375.  And  the  same  result  has  been  reached  where  the  municipal 
body  has  no  power  to  fix  rates:  Mills  v.  City  of  Chicago,  127  Fed. 
73L 

85  In  City  of  Walla  Walla  v.  Walla  Walla  Water  Co.,  172  U,  S, 
1,  19  Sup.  Ct.  77,  82,  43  L.  ed.  341,  injunction  was  sought  against 
the  erection  of  competing  waterworks  by  the  city,  in  violation  of 
complainant's  contract  and  franchise.  The  court,  speaking  of  the* 
remedy  at  law  for  the  threatened  breach  of  the  contract,  says: 
"In  the  meantime  great — perhaps  irreparable — damage  would  have 
been  done  to  the  plaintiff.  What  the  measure  of  such  damages 
was  would  be  exceedingly  difiicult  of  ascertainment,  and  would 
depend  largely  upon  the  question  of  whether  the  value  of  plaintiff's 
plant  was  destroyed  or  merely  impaired.  It  would  be  impossible 
to  say  what  would  be  the  damage  incurred  at  any  particular  mo- 
ment, since  such  damage  might  be  more  or  less  dependent  upon 
whether  the  competition  of  the  city  should  ultimately  destroy, 
or  only  interfere  with,  the  business  of  the  complainant."  The 
case  of  Southwest  Missouri  Light  Co.  v.  City  of  Joplin,  101  Fed. 
23,  33,  was  similar.  In  Los  Angeles  City  Water  Co.  v.  City  of  Los 
Angeles,  88  Fed.  720,  748,  the  court  says  in  regard  to  an  ordi- 
nance fixing  water  rates,  when  the  state  laws  and  constitution  im- 
pose severe  penalties  for  charging  more  than  the  legal  rates:  ''The 
ordinance,  by  reason  of  the  severe  pains  and  penalties  which  appar- 
ently fortify  it,  is  daily,  hourly,  and  momentarily  enforcing  itself. 
The   defendants   must   either   submit   to   the   terms   of   the   ordinance. 


637  INJUNCTION;    MUNICIPAL    CORPORATIONS.       §  355 

§  355.  Injunctions  Against  "Wrongful  Acts  in  General.— 
Where  municipal  corporations,  or  their  officers, 
threaten  to  do  some  wrongful  act  which  will  directly 
injure  an  individual,  such  a  party  may,  if  the  case 
comes  within  some  recognized  head  of  equity  jurisdic- 
tion, restrain  such  action.  Thus,  where  municipal  au- 
thorities wrongfully  threaten  to  remove  certain  shade 
trees  from  a  street,  the  abutting  owner  may  obtain  an 
injunction,  his  injury  being  irreparable.^®  Likewise, 
abutting  owners  have  been  allowed  to  enjoin  the  change 
of  a  park  into  a  highway,  where  the  park  had  been  dedi- 
cated in  conformity  with  a  general  building  plan.®''^  A 
few  miscellaneous  illustrations  are  appended  in  the 
note.^* 

or  incur  unusually  onerous  expenditures.  It  is  reasonably  certain 
that  if,  with  the  ordinance  standing,  they  were  to  undertake  the 
collection  of  rates  in  excess  of  those  prescribed  in  the  ordinance, 
they  would  be  resisted  at  every  point  by  the  consumers  of  water, 
and  thus  be  driven  to  innumerable  actions  at  law.  Besides,  should 
they,  in  any  instance,  succeed  in  collecting  without  an  action  a 
kigher  rate  than  the  ordinance  prescribes,  it  is  equally  certain 
that  they  would  thereby  bring  upon  themselves  protracted  and 
keavy  litigation,  having  for  its  object  forfeiture  of  their  entire 
eystem  of  works.  Surely  these  injuries  are  irreparable,  and  actions 
at  law,  so  far  from  being  adequate  to  the  exigencies  of  the  situa- 
tion, are,  as  complainants,  in  their  brief,  forcibly  put  it,  mere  mock- 
eries of  a  remedy."  See,  also,  Los  Angeles  City  Water  Co.  v. 
City  of  Los  Angeles,  103  Fed.  711,  738  (city  threatens  to  enforce 
constitutional  provision  for  forfeiture  of  complainant's  works  if 
•rdinance  is  disobeyed);  New  Memphis  Gas  &  Light  Co.  v.  City  of 
Memphis,  72  Fed.  952  (where  injunction  pendente  lite  granted 
against  ordinance  fixing  rates) ;  Riverside  &  A.  Ey.  Co.  v.  City  of 
Biverside,  118  Fed.  736. 

86  Mayor  etc.  of  City  of  Frostburg  v.  Wineland,  98  Md.  239,  103 
Am.  St.  Eep.  399,  56  Atl.  811.  See,  also,  Burget  v.  Incorporated 
Town  of  Greenfield,  102  Iowa,  432,  94  N.  W.  933. 

87  Village  of  Riverside  v.  Maclean,  210  111.  308,  102  Am.  St.  Rep. 
164,   71   N.   E.   408. 

88  See  Lerch  v.  City  of  Duhith,  88  MinTi.  '20",  92  N.  W.  1116; 
Nebraska     Telephone     Co.   v.     City    of    i'leniout     (Neb.),   99     N.    W. 


§  355  EQUITABLE  EEMEDIES.  638 

811  (intorference  with  telephone  poles  and  wires  enjoined) ;  West 
Jersey  &  S.  R.  Co,  v.  Waterford  Tp.,  64  N.  J.  Eq.  157,  55  AtL 
157;  Eochester  &  L.  O.  Water  Go.  v.  City  of  Rochester,  176  N.  Y. 
36,  68  N.  E.  117;  Schooling  v.  City  of  Harrisburg,  42  Or.  494,  71 
Pac.  605;  Belington  &  N.  R.  Co.  v.  Town  of  Alston,  54  W.  Va.  597, 
46  8.  E.  612  (injunction  against  tearing  up  railroad  tracks). 


639  INJUNCTION   AGAINST   TAXATION. 


CHAPTER  XIX. 


INJUNCTION"  AGAINST  TAXATION;   AND   AGAINST 
SPECIAL   OR   LOCAL   ASSESSMENTS. 

ANALYSIS. 

§  356.  In  general.  — Two  classes  of  states. 

§  357.  Principles    of    general    application — Irregularities — Ten- 
der. 

5§  358-362.  First    type. 

§  359.  Same;   Inadequacy  of  the  legal  remedy — Taxes  on  per- 
sonal   property. 

§  360.  Same;  Fraud. 

§  361.  Same;    Multiplicity    of    suits. 

§  362.  Same;   Cloud  on  title. 

§  363,  Second    type. 

§  364.  Special   or  local   assessments. 

§§  365-378.  United   States   courts. 

§  365.  Federal    taxes. 

§  366.  State  taxes;   federal  jurisdiction. 

§  367.  Adequate   remedy   in    state    courts. 

§§  368-375.  Grounds  of  the   equitable  jurisdiction. 

§  369.  Personal    property. 

§  370.  Irreparable  injury. 

§  371.  Valuation  resulting  in  unjust  discrimination. 

§  372.  Multiplicity    of    suits. 

§  373.  Cloud  on  title. 

§  374.  State  tax  in  violation  of  contract. 

§  375.  Injunction   warranted    by    state    laws. 

§  376.  Tender. 

§  377.  Property  in  hands  of  federal  receiver. 

S  378.  Special   assessments. 

§  379.  Alabama. 

§  380.  Arizona. 

§§  381, 382.  Arkansas. 

§   382.  Special    assessments. 

§§  383,384.  California. 

§  384.  Special    assessments. 

S§  385,386.  Colorado. 

§  386.  Special    assessments. 

§  387.  Connecticut. 


EQUITABLE  KEMEDIEfl,  640 


{  388.  Dolnware. 

§  389.  Florida. 

il  390,391.  Georgia. 

§  391.  Special   assessments. 

§  392.  Idaho. 

{§  393-399.  niinoia. 

§  393.  In    general. 

§  394.  Illegality. 

§  395.  Illegal   municipal   taxea. 

§  396.  Illegal   taxes;   parties  plaintiff. 

§  397.  Exempt    property. 

§  398.  Fraudulent   increase  of   assessment 

§  399.  Special    or    local    assessments. 

§§  400-402.  Indiana. 

§  401.  Tender  of  legal  tax. 

§  402.  Special    assessments. 

|§  403,404.  Iowa. 

§  404.  Special    assessments. 

5§  405-408.  Kansas. 

§  406.  Parties. 

§  407.  Tender. 

§  408.  Special    assessment!, 

§  409.  Kentucky. 

§  410.  Louisiana. 

§  411.  Maine. 

il  412,413.  Maryland. 

§  413.  Special    assessments. 

§  414.  Massachusetts. 

§1  415,416.  Michigan, 

§  416.  Special    assessments 

|§  417, 418.  Minnesota, 

§  418,  Special    assessments. 

§  419.  Mississippi. 

|§  420, 421.  Missouri, 

§  421.  Special    assessmenta, 

§  422.  Montana, 

li  423,424.  Nebraska. 

§  424.  Special   assessments 

§  425.  Nevada. 

§  426.  New    Hampshire. 

S  427.  New   Jersey. 

§  428,  New   Mexico. 

§§  429-431,  New    York, 

§  430.  Cloud   on   title, 

I  431,  Special    assessments. 

|§  432,433.  North    Carolina. 


641  INJUNCTION  AGAINST  TAXATION.  C  408 

§  433.  Special    assessments. 

§  434.  North     Dakota. 

§1  435,436.  Ohio. 

§  436.  Special    assessments. 

|§  437-439.  Oklahoma. 

§  438.  Increase   of   assessment. 

§  439.  Tender. 

§§  440, 441.  Oregon. 

§  -^41.  Special    assessments. 

§  442.  Pennsylvania, 

§  443.  Ehode    Island. 

§  444.  South    Carolina. 

§§  445,446.  South    Dakota. 

§  446.  Special    assessments. 

§  447.  Tennessee. 

5§  448,449.  Texas. 

§  44.9.  Special    assessments. 

§  450.  Utah. 

§§  451,452.  Vermont. 

§  452.  Special    assessments. 

§  453.  Virginia. 

§§  454, 455.  Washington. 

§  455.  Special    assessments. 

§§  456,457.  West   Virginia. 

§  457.  Special    assessments, 

S§  458-163.  Wisconsin. 

§  459.  Defects  going  to  the   validity  of  the  assessment. 

§  460.  Defects  not  going  to  the  validity  of  the  assessment, 

§  461.  Cloud    on    title. 

§  462.  Payment    or    tender. 

§  463.  Special    assessments. 

§  464.  Wyoming. 

§  356.     In    General — Two   Classes   of   States The   rules 

governing  the  issuance  of  injunctions  to  restrain  the 
collection  of  invalid  taxes  are  far  from  uniform.  In 
general,  the  states  may  be  divided  into  two  classes,  al- 
though in  but  few  of  the  states  will  all  the  rules  be 
found  to  agree.  In  states  of  the  first  type  the  juris- 
diction depends  upon  the  existence  of  some  recognized 
ground  for  general  equitable  relief,  such  as  the  preven- 
tion of  a  multitude    of  suits,  the  removal  of  a  cloud 

Equitable  Eemedies,  Vol.  I — 41 


g  357  EQUITABLE   REMEDIES.  64ii 

upon  title,  and  the  like.  In  states  of  the  second  type 
the  jurisdiction  rests  upon  the  illegality  or  invalidity 
of  the  tax,  and  is  independent  of  the  existence  of  any 
generally  recognized  ground  for  equitable  relief.  Ow- 
ing to  this  great  diversity  and  to  the  importance  of  the 
subject,  the  rules  in  all  of  the  several  states  will  be  ex- 
amined separately. 

§  357.  Principles  of  General  Application — Irreg^ularities — 
Tender. — It  is  a  principle  of  general  application  that 
mere  irregularities  in  the  assessment  are  not  sufificient 
to  warrant  the  interference  of  equity.^  The  collection 
of  public  revenue  will  not  be  prevented  unless  there  is 
some  substantial  defect  which  renders  the  tax  invalid 
as  to  the  complainant.  Public  policy  demands  that  no 
needless  restriction  be  placed  upon  the  securing  of  the 
necessary  means  for  conducting  the  government.  It  is 
also  generally  the  rule  that  where  a  tax  is  valid  in 
part  and  invalid  in  part,  no  relief  will  be  awarded  un- 
less a  payment  or  tender  is  made  of  the  portion  ad- 
mitted to  be  valid.^  This  is  an  application  of  the 
maxim  that  "he  who  seeks  equity  must  do  equity."  In 
some  states  it  is  held  that  such  payment  or  tender  is 
merely  a  condition  of  relief,  and  that  it  need  not  be 
made  before  suit.^     In  others  it  is  said  that  a  mere  aver- 

1  It  has  been  so  held,  e.  g.,  in  the  federal  courts,  and  in  Arizona, 
Arkansas,  California,  Illinois,  Indiana,  Kansas,  Kentucky,  Mary- 
land, Michigan,  Missouri,  Nebraska,  Oklahoma,  Oregon,  Pennsyl- 
vania and  Texas.  See  cases  cited  in  notes  to  sections  discussing 
the  rules  in  these  jurisdictions. 

2  It  has  been  so  held,  e.  g.,  in  the  federal  courts,  and  in  Alabama, 
Arizona,  Arkansas,  California,  Colorado,  Florida,  Indiana,  Kansas, 
Kentucky,  Michigan,  Mississippi,  Montana,  Nebraska,  North  Dakota, 
Oklahoma,  Oregon,  Utah,  Washington  and  Wisconsin.  See  cases 
cited  in  notes  to  sections  discussing  the  rules  in  these  jurisdictions. 

3  It  is  so  held,  e.  g.,  in  Florida,  and  it  is  probably  the  rule  in 
Missouri.  See  cases  cited  in  notes  to  sections  discussing  the  rules 
in    these   states. 


643  INJUNCTION  AGAINST  TAXATION.         §§  358, 359 

ment  of  readiness  and  willingness  to  pay  is  not  suf- 
ficient ;  that  the  amount  must  be  either  paid  or  tendered 
before  suit* 

§  358.  First  Type. — In  states  of  the  first  type  the  mere 
illegality  of  the  tax  is  not  ground  for  equitable  relief. 
"It  must  appear  that  the  enforcement  of  the  tax  would 
lead  to  a  multiplicity  of  suits,  or  produce  irreparable 
injury;  or  if  the  property  is  real  estate,  throw  a  cloud 
upon  the  title  of  the  complainant,  or  there  must  be 
some  allegation  of  fraud,  before  the  aid  of  a  court  of 
equity  can  be  invoked.  There  must  in  every  case  be 
some  special  circumstance  attending  a  threatened  in- 
jury of  this  kind,  which  distinguishes  it  from  a  common 
trespass,  and  brings  the  case  under  some  recognized 
head  of  equity  jurisdiction  before  the  extraordinary 
and  preventive  remedy  of  injunction  can  be  invoked."^ 

§  359.  Same;  Inadequacy  of  the  Legal  Remedy — Taxes  on 
Personal  Property — The  inadequacy  of  the  legal  remedy 
is  a  fundamental  ground  of  jurisdiction.  In  tax  cases 
this  test  is  frequently  applied  to  assessments  upon  per- 
sonal property.  Ordinarily,  in  states  of  this  class,  it  is 
held  that  there  is  an  adequate  remedy  at  law  for  in- 
juries to  personalty.  If  the  officers  of  the  law  seize  it 
for  non-payment  of  an  invalid  tax,  they  are  liable  in 
trover  or  trespass,  and  damages  are  presumed  to  fully 
compensate  for  any  loss.  Consequently  it  is  stated 
that  in  general  an  injunction  will  not  issue  to  prevent 

4  It  has  been  so  held  in  the  federal  courts  and  in  Kansas.  See 
cases  cited  in  notes  to  sections  discussing  the  rules  in  these  jurisdic- 
tions. 

5  Wells,  Fargo  &  Co.  v.  Dayton,  11  Nev.  161.  The  leading  case 
of  this  type  is  Dows  v.  City  of  Chicago,  11  Wall.  108,  20  L.  ed.  65. 


S  360  EQUITABLE  EEMEDIES.  644 

the  collection  of  an  invalid  tax  on  personal  property.® 
Cases  may  arise,  however,  where  the  unauthorized  in- 
terference of  the  tax  officer  will  work  irreparable  in- 
jury, and  in  such  cases  injunctive  relief  is  proper. 
Thus,  the  unlawful  seizure  of  railroad  cars  for  non-pay- 
ment of  an  invalid  tax  may  work  such  an  injury  to 
the  company  as  to  warrant  the  interposition  of  equity.'^ 
Where  the  business  of  the  owner  will  be  seriously  in- 
terfered with  or  ruined  by  the  enforcement  of  the  tax, 
equity  may  enjoin  its  collection;  and  such  relief  is  au- 
thorized where  the  destruction  of  a  corporate  franchise 
is  imminent.^  The  application  of  the  test  of  inade- 
quacy of  the  legal  remedy  is  not  confined  to  cases  of 
personal  property.  It  applies  to  cases  of  realty  as 
well.® 

§  360.  Same;  Fraud. — In  some  of  the  states  of  this  class 
fraud  appears  to  be  a  ground  for  relief.^^  Accordingly, 
when  officers,  by  a  systematic,  intentional  and  illegal 

«  It  has  been  so  held,  e.  fir.,  in  the  federal  courts,  and  in  California, 
Colorado,  Florida,  Michigan,  Minnesota,  Nevada,  North  Carolina, 
North  Dakota,  West  "Virginia  and  Wisconsin.  See  cases  cited  in 
notes  to  sections  discussing  the  rules  in  these  jurisdictions. 

7  Southern  Ky.  Co.  v.  City  of  Asheville,  69  Fed.  359;  City  of 
Detroit  v.  Wayne  Circuit  Judge,  127  Mich.  604,  8  Detroit  Leg.  N. 
465,   86   N.   W.    1032. 

8  Osborn  v.  Bank  of  the  United  States,  9  Wheat.  738,  6  L.  ed. 
204.  In  some  jurisdictions  no  recovery  of  invalid  taxes  paid  is  al- 
lowed unless  payment  is  made  under  duress.  Where  such  a  statute, 
in  connection  with  another  imposing  a  penalty  of  fifty  dollars  per  day 
for  non-payment,  threatens  injury  to  one  upon  whom  an  invalid 
tax  has  been  assessed,  injunctive  relief  has  been  allowed:  Stone  v. 
Bank  of  Kentucky,  174  U.  S.  799,  19  Sup.  Ct.  881,  43  L.  ed.  1177; 
First  Nat.  Bank  v.  City   of  Covington,   103  Fed,   523. 

9  For  an  application  to  realty,  see  United  States  v.  Eickert,  188 
U.  S.  432,  23  Sup.  Ct.  478,  47  L.  ed.  532. 

10  Such  seems  to  be  the  rule  in  the  federal  courts,  and  in  Cali- 
fornia, Michigan,  Oregon  and  Wisconsin.  See  cases  cited  in  notes 
to  sections  discussing  the  rules  in  these  jurisdictions. 


645  INJUNCTION  AGAINST  TAXATION.  f  361 

under-valuation  of  other  property,  make  an  unjust  dis- 
crimination against  the  complainant,  an  injunction 
may  issue.^^  The  same  relief  is  allowed  when  an  as- 
sessment is  so  excessive  as  to  give  rise  to  a  presumption 
of  fraud.^2  Proof  of  discrimination  must  be  clear  and 
convincing  to  warrant  interference.^^  An  assessment 
is  not  fraudulent  merely  because  of  being  excessive. 
If  the  assessor  has  acted  from  proper  motives,  an  in- 
junction is  not  the  proper  remedy;  but  when  he  pur- 
posely, or  in  reckless  disregard  of  duty  levies  a  tax 
which  discriminates  against  a  tax-payer,  equity  may 
grant  relief.^* 

§  361.  Same:  Multiplicity  of  Suits. — The  avoidance  of  a 
multiplicity  of  suits  as  a  ground  for  equitable  juris- 
diction in  tax  cases  has  been  so  fully  discussed  else- 
where^^ that  a  brief  summary  only  is  here  called  for. 
The  propriety  of  exercising  this  jurisdiction  is  seldom 
denied  in  the  cases  belonging  to  Professor  Pomeroy'a 
"Second  Class" — where  the  complainant,  in  the  ab- 
sence of  equitable  interference,  is  exposed  to  repeated 

11  Louisville  Trust  Co.  v.  Stone,  107  Ted.  305,  46  C.  C,  A.  299, 
Southern  Ky.  Co.  v.  North  Carolina  Corp.  Com.,  104  Fed.  700;  Nash- 
ville, C.  &  St.  L.  E.  Co.  V.  Taylor,  86  Fed.  168;  Walsh  v.  King, 
74  Mich.  350,  41  N.  W.  1080.  The  fraudulent  omission  of  mort- 
gages from  the  assessment  has  been  held  to  be  ground  for  relief: 
Hamblin  Eeal  Estate  Co.  v.  City  of  Astoria,  26  Or.  599,  40  Pac. 
230;  Smith  v.  Kelly,  24  Or.  464,  33  Pac.  642.  A  tax  based  upon  aa 
assessment  "fraudulently  and  corruptly  made,  with  the  intentioa 
of  discriminating"  against  a  party,  may  be  enjoined:  Pacific  Postal 
etc.  Cable  Co.  v.  Dalton,  119  Cal.  604,  51  Pac.  1072. 

12  Oregon  &  C.  E.  Co.  v.  Jackson  County,  38  Or.  589,  64  Pac. 
307,  65  Pac.  369. 

13  Louisville  Trust  Co.  v.  Stone,  46  C.  C.  A.  299,  107  Fed.  305; 
and  see  §  371,  infra. 

14  Pioneer  Iron  Co.  v.  City  of  Negaunee,  116  Mich.  430,  74  N.  W. 
700. 

15  See  1  Pom.  Eq.  Jur.  (3d  ed.),  §§  258-260,  265,  266,  270,  and  notes. 


(•  3*^1  EQUITABLE  EEMEDIES.  646 

litigation  with  the  same  defendant^ ^ — or  in  those  of 
the  "Fourth  Class," — where  the  single  complainant 
would  be  compelled  to  bring  or  defend  numerous  suits 
against  different  parties,  all  involving  the  same  ques- 
tions of  fact  or  law.^^     The  exercise  of  the  jurisdiction 

16  Suits  to  enjoin  collection  of  a  tax,  the  invalidity  of  which 
had  been  established  at  law,  were  upheld  on  this  ground  in  Pater- 
eon  etc.  E.  K.  Co.  V.  Jersey  City,  9  N.  J.  Eq.  434;  Bank  of  Ken- 
tucky V.  Stone,  88  Fed.  383;  Union  &  Planters'  Bank  v.  Memphis, 
]11  Fed.  561,  49  C.  C.  A.  455;  see  1  Pom,  Eq.  Jur.,  §  253,  notes  2 
and  _(^)' 

But  it  has  been  held  that  the  plaintiff  must  show  that  the 
danger  of  repeated  suits  by  the  state  is  "a  probable,  and  not  possible 

danger Whatever    the    rule    may    be    in    the    case    of    natural 

persons,  the  court  will  presume  that  a  state  is  incapable  of  such  a 
vulgar  passion,  and,  until  the  fact  is  shown  to  be  otherwise,  will 
act  on  the  assumption  that  a  state  will  not  bring  any  more  suits 
than  are  fairly  necessary  to  establish  and  maintain  its  rights": 
Pacific  Exp.  Co.  v.  Seibert,  44  Fed.  310;  see  1  Pom.  Eq.  Jur.  (3d 
ed.),  §  251%,  note   (b). 

17  See  1  Pom.  Eq.  Jur.  (3d  ed.),  §  261,  note  (b),  "Class  Fourth," 
pp.  417,  418.  A  common  instance  is  where  a  railroad  or  telegraph 
company  is  exposed  to  tax  suits  in  different  counties,  all  involving 
a  common  question;  especially  where  such  companies  are  assessed 
by  a  state  board  on  all  of  their  property  within  the  state,  and  pro- 
portionate parts  of  this  assessment  are  certified  for  collection  to 
the  tax  oflScials  of  the  various  counties  in  which  the  company  oper- 
ates: Union  Pac.  E.  E.  Co.  v.  McShane,  3  Dill.  303,  Fed.  Cas.  No. 
14,382,  affirmed,  22  Wall.  444,  22  L.  ed.  747;  Union  Pac.  E.  E.  Co. 
V.  Cheyenne,  113  U.  S.  516,  5  Sup.  Ct.  601,  28  L.  ed.  1098;  Northern 
Pac.  E.  E.  Co.  V.  Walker,  47  Fed.  681;  Western  Union  Tel.  Co,  v. 
Poe,  61  Fed.  449,  453;  Sanford  v.  Poe,  69  Fed.  546,  548,  16  C.  C.  A, 
305,  60  L.  E.  A.  641;  Western  Union  Tel.  Co,  v.  Norman,  77  Fed, 
13,  21;  Eailroad  &  Telephone  Cos.  v.  Board  of  Equalizers,  85  Fed, 
302;  Taylor-  v,  Louisville  &  N.  E.  E.  Co.,  88  Fed.  350,  31  C.  C.  A. 
537;  Coulter  v.  Weir,  62  C,  C,  A,  429,  127  Fed.  897;  Philadelphia,  W. 
&  B.  E.  Co.  v,  Neary,  5  Del.  Ch.  600;  Mobile  &  O.  E,  E,  Co,  v, 
Moseley,  52  Miss.  127,  137;  Chesapeake  &  O.  E.  E.  Co.  v.  Miller, 
19  W.  Va.  408.  Again,  where  a  bank  or  other  corporation  is  re- 
quired by  law  to  pay  the  taxes  assessed  on  all  of  its  shares,  and 
reimburse  itself  by  withholding  proportionate  parts  of  the  dividends 
from  its  shareholders,  it  may  enjoin  an  illegal  tax,  since  its  pay- 
ment thereof  would  subject  it  to  a  suit  by  each  shareholder:  Cum- 
mings  V.  Merchants'  Nat.   Bank,   101   U,   S,   153,   25   L.   ed.   903,   and 


647  INJUNCTION  AGAINST  TAXATION.  S  361 

in  the  "Third  Class"  of  Professor  Pomeroy's  analysis 
is  a  question  on  which  the  cases  are  more  evenly  di- 
vided. In  this  class,  it  will  be  remembered,  "a  num- 
ber of  persons  have  separate  and  individual  claims  and 
rights  of  action  against  the  same  party,  but  all  arise 
from  some  common  cause,  are  governed  by  the  same 
legal  rule,  and  involve  similar  facts,  and  the  whole  mat- 
ter might  be  settled  in  a  single  suit  brought  by  all  these 
persons  uniting  as  co-plaintiffs,  or  one  of  the  persons 
suing  on  behalf  of  the  others,  or  even  by  one  person 
suing  for  himself  alone."^^  The  equity  in  this  class 
of  cases  arises  from  two  considerations:  first,  the  pub- 
lic convenience  and  economy  in  determining,  in  a  single 
equitable  issue,  a  question  that,  without  such  deter- 
mination, might  lead  to  innumerable  trials  of  the  same 
question  in  separate  suits  at  law;  and  secondly,  the 
practical  failure  of  justice  that  must  result  from  leav- 

other  cases  cited;  1  Pom.  Eq.  Jur.  (Sil  ed.),  §  261,  p.  418.  Contra, 
see  Equitable  Guarantee  &  T.  Co.  v.  Donahoe  (Del.),  45  Atl.  5So,  in 
]  Pom.  Eq.  Jur.,  §  266,  note   (a). 

18  1  Pom.  Eq.  Jur.,  §  245.  Among  the  eases  of  this  class  sup- 
I.'orting  the  jurisdiction  are,  Greedup  v.  Franklin  County,  30  Ark. 
101;  Keese  v.  City  of  Denver,  10  Colo.  113,  15  Pac.  825  (special 
assessment) ;  Dumars  v.  City  of  Denver,  16  Colo.  App.  375,  65  Pac. 
580  (special  assessment);  Bode  v.  New  England  Inv.  Co.,  6  Dak. 
499,  42  N.  W.  658,  45  N.  W.  197;  Carlton  v.  Newman,  77  Me.  408,  1 
Atl.  194;  Sherman  v.  Benford,  10  E.  I.  559;  MeTwiggan  v.  Hunter, 
18  E.  I.  776,  30  Atl.  962,  2  Ames  Cas.  Eq.  Jur.,  71,  73,  and  notes; 
Quimby  v.  Wood,  19  E.  I.  571,  35  Atl.  149;  McMickle  v.  Hardin, 
25  Tex.  Civ.  App.  222,  61  S.  W.  322  (but  no  injunction  after  suits 
have  already  been  begun  for  the  collection  of  taxes);  McClung 
V.  Livesay,  7  W.  Va.  329;  Doonan  v.  Board  of  Education,  9  W.  Va. 
246;  Corrothers  v.  Board  of  Education,  16  W.  Va,  527;  Williams  v. 
Grant  County  Court,  26  W.  Va.  488,  53  Am.  Eep.  94  (an  exhaustive 
discussion  of  the  subject);  Blue  Jacket  Co.  v.  Scherr,  50  W.  Va. 
533,  40  S.  E.  514.  In  states  of  the  second  type,  also,  where  the 
mere  illegality  of  the  tax  is  a  ground  for  its  injunction  at  the  suit 
of  the  single  plaintiff,  the  avoidance  of  a  multiplicity  of  suits  is 
recognized  as  a  further  ground:  See  infra,  Illinois  and  MissourL 
See,  also,  cases  collected  in  1  Pom.  Eq.  Jur.,  §  260. 


fi  361  EQUITABLE  EEMEDIES.  648 

ing  each  member  of  the  community  to  obtain  redress 
at  law  for  his  small  share  of  the  injury  suffered  by  all 
alike.  To  the  vast  majority  of  tax-payers,  a  suit  to 
recover  back  illegal  taxes  paid  is,  of  course,  an  ade- 
quate remedy  in  theory  only;  the  amount  recovered  is 
not  worth  the  expense  of  litigation.^ ^  In  the  view  of 
many  courts,  however,  these  considerations  of  economy 
and  convenience,  both  to  the  community  as  a  body  and 
to  all  its  individuals,  do  not  outweigh  the  "other  rea- 
sons of  policy,  founded  on  the  necessity  of  speedy  col- 
lection of  taxes,  which  ought  to  prevent  a  court  of  chan- 
cery from  suspending  these  [tax]  proceedings,  except 
upon  the  clearest  grounds."^''  It  is  to  be  observed  that 
the  jurisdiction  arises,  in  cases  of  this  class,  only 
"when  the  illegality  extends  to  the  whole  tax,  so  that 
the  question  involved  is  the  validity  of  the  whole  tax 
and  its  assessment  on  every  person  taxed"  i^^  where, 
for  example,  the  question  is  one  of  the  exemption  from 
taxation  of  the  separate  property  of  several  owners,  no 
"multiplicity  of  suits"  is  avoided  by  the  attempt  to  con- 
solidate the  various  issues  in  a  single  case  in  equity, 
since  "each  complainant  must  make  his  own  case  upon 
the  facts"  peculiar  to  him.^^ 

19  See,  especially,  the  passages  from  the  opinions  in  Greedup  v. 
Franklin  County,  30  Ark.  109;  Kanney  v,  Bader,  67  Mo.  476,  480; 
Carlton  v.  Newman,  77  Me.  408,  1  Atl.  194;  and  Knopf  v.  First 
Nat.  Bank,  173  III.  331,  50  N.  E.  660,  quoted  in  1  Pom.  Eq.  Jur. 
(3d   ed.),    §    2G0,   note    (d). 

20  Dodd  V.  City  of  Hartford,  25  Conn.  232.  See  cases  cited  in  1 
Pom.  Eq.  Jur.,  §§  265,  266.  This  view  appears  to  obtain  in  Connec- 
ticut, Delaware,  District  of  Columbia,  Idaho,  Michigan,  Mississippi, 
New  York,  Wisconsin,  and  possibly  in   other  states. 

21  McTwiggan  v.  Hunter,  18  R.  I.  776,  30  Atl.  962. 

22  Schulenberg-Boeckeler  Lumber  Co.  v.  Town  of  Hayward,  20 
Fed.  422,  424;  see  1  Pom.  Eq.  Jur.  (3d  ed.),  §  25iy2,  note  (d).  Of 
course,  in  many  states  the  fact  that  property  is  by  law  exempt 
from  taxation  is  an  independent  ground  for  injunction:  See  punt,  § 
363. 


€49  INJUNCTION  AGAINST  TAXATION.  §  30a 

§  362.  Same;  Cloud  on  Title.— Taxes  on  realty,  and 
sometimes  those  on  personalty  as  well,  are  generally 
made  a  lien  upon  real  estate.  Accordingly,  if  the  pro- 
ceedings are  valid  on  their  face,  every  such  tax  will 
cast  a  cloud  upon  the  title  to  land.  The  prevention  and 
removal  of  such  clouds  on  title  are  well  established 
and  familiar  grounds  of  equitable  jurisdiction.  Con- 
sequently, equity  will  interfere  by  injunction  to  prevent 
and  remove  the  cloud  cast  by  such  an  illegal  or  invalid 
tax.^^  Where  the  proceedings  are  defective  upon  their 
face,  it  is  generally  held  that  there  is  no  cloud  to  re- 
move, the  argument  being  that  no  injury  can  result 
from  an  instrument  which,  upon  its  face,  confers  no 
valid  right.  While  the  reasoning  appears  faulty,  the 
decided  weight  of  authority  is  on  its  side;  and  accord- 
ingly it  is  held  that  an  injunction  will  not  issue.^* 
In  New  York,  it  is  held  that  to  warrant  relief  it  must 
not  only  be  shown  that  the  proceedings  are  regular 
on  their  face  and  invalid  only  because  of  defects  dehors 
the  record,  but  also  that  the  defect  will  not  neces- 
sarily appear  in  proceedings  to  enforce  the  lien.^^  In 
some  states,  a  tax  deed  is  made  prima  facie  evidence 
of  the  validity  of  the  proceedings;  and  if  it  is  valid 
upon  its  face,  though  invalid  in  fact,  an  injunction  may 
issue.^*' 

23  The  prevention  of  a  cloud  on  title  is  probably  a  ground  for 
the  issuance  of  an  injunction  against  an  invalid  tax  in  all  juris- 
dictions save  Connecticut,  Massachusetts,  and  Ehode  Island. 

24  See  e.  g.,  cases  in  the  federal  courts,  and  in  California,  Colo- 
rado, Delaware,  Idaho,  and  Minnesota.  For  a  full  discussion  of  these 
principles,  see  Vol.  II.,  chapter  on  Cloud  on  Title. 

25  See  cases  cited  in  notes  to  section  discussing  rules  in  New- 
York,  post. 

26  See  cases  cited  in  notes  to  sections  discussing  rules  in  Wis- 
consin; but  in  Minnesota  the  injunction  will  not  issue  when  th« 
defect  is  apparent  on  the  face  of  the  proceedings  unless  the  issu- 
ance of  such  a  deed  is  threatened. 


§  363  EQUITABLE  REMEDIES.  650 

§  363.  Second  Type. — In  states  of  this  type,  the  mere 
illegality  of  a  tax  is  (subject  to  some  limitations)  a 
ground  of  jurisdiction  for  its  injunction,  apart  from 
any  question  of  irreparable  injury,  of  multiplicity  of 
suits,  or  of  cloud  on  title.  No  distinction,  in  principle, 
is  made  between  taxes  on  real  and  on  personal  prop- 
erty. As  might  be  expected,  the  tax  litigation  in  many 
of  these  states  is  very  extensive.  As  a  result  of  this 
litigation,  several  of  the  states  have  worked  out  a  large 
body  of  special  rules  on  the  subject  of  equitable  relief 
against  taxation,  wholly  unaided  by  reference  to  the 
development  of  the  subject  in  sister  states;  thus  ren- 
dering any  generalizations  drawn  from  a  comparison 
of  these  rules  somewhat  difficult,  if  not  unprofitable. 
In  a  few  of  these  states,  moreover,  injunction  of  illegal 
taxation  is  expressly  authorized  and,  to  some  extent, 
regulated  by  statute.^^  Injunction  is  usually  a  matter 
of  right  when  property  exempt  by  law  from  taxation  is 
sought  to  be  taxed;  on  the  other  hand,  where  the  ques- 
tion is  one  of  an  oppressive  overvaluation,  the  com- 
plainant must,  as  a  general  rule,  first  pursue  the  statu- 
tory remedy  of  appeal  to  the  board  of  review  or  equal- 
ization. As  to  what  constitutes  a  substantial  illegal- 
ity in  the  assessment  or  levy  of  a  tax,  as  distinguished 
from  a  mere  irregularity  that  is  not  a  matter  for  in- 
junctive relief,  the  decisions  are  numerous  and  vary- 
ing. Where  the  tax  as  a  whole  is  illegal,  any  number 
of  tax-payers  may  join  in  the  suit,  or  one  may  sue  on 
behalf  of  all  others  similarly  affected.-^  The  states 
clearly  belonging  in  this  group  are:  Georgia,  Illinois, 
Indiana,    Iowa,    Kansas,    Kentucky,   Mississippi,   Mis- 

27  See  infra,  Kansas,  Mississippi,  Montana,  Nebraska,  North  Caro- 
lina,  Ohio,   Oklahoma,   Utah,   Wyoming. 

28  For  further  details,  see  index  to  this  treatise.  The  numerous 
and  able  decisions  of  the  Illinois  courts,  infra,  may  be  consulted 
with  profit  as  representative  of  this  type  of  states. 


651         INJUNCTION  AGAINST   SPECIAL  ASSESSMENTS.     §   3(34 

sonri  (by  recent -decisions),  Montana,  Nebraska,  North 
Carolina,  Ohio,  Oklahoma,  Pennsylvania,  South  Da- 
kota, Tennessee,  Utah,  Washington,  and  Wyoming 

§  3G4.  Special  or  Local  Assessments. — Special  or  local 
assessments,  for  the  purpose  of  defraying  the  expense 
of  local  improvements,  such  as  the  opening,  paving,  or 
repairing  of  streets,  and  levied  by  municipal  authority 
upon  the  property  owners  embraced  within  a  limited 
district,  are  a  form  of  taxation,  subject  to  equitable  con- 
trol upon  the  same  principles  which  regulate  the  in- 
junction of  general  taxation.  The  "recognized  head 
of  equity  jurisdiction"  under  which  these  cases  are 
nearly  always  brought  is,  the  prevention  of  a  cloud  on 
the  title  to  real  property.  The  proceedings,  therefore, 
against  which  relief  is  sought,  must  not  be  invalid  upon 
their  face,  since  otherwise,  according  to  the  usual  defi- 
nition, no  "cloud"  will  be  cast  upon  the  complainant's 
title.^^  As  in  the  case  of  general  taxation,  mere  irregu- 
larities in  the  proceedings  do  not  warrant  an  injunc- 
tion, where  sufficient  has  been  done,  in  compliance  with 
statutory  directions,  to  give  the  municipal  authorities 
jurisdiction  of  the  subject.^''  Of  the  substantial  de- 
fects which,  when  not  apparent  upon  the  face  of  the 
proceedings,  furnish  grounds  for  equitable  relief,  per- 
haps the  most  frequent  are :  the  lack  of  a  consent  of  the 
majority  of  the  property-holders  to  be  affected,  when 
that  is  a  statutory  prerequisite;^^  that  the  ordinance, 

29  See  cases,  infra,  e.  g.,  in  the  United  States  courts,  California, 
New  York,  Vermont,  Wisconsin.  In  Massachusetts,  as  in  cases  of 
general  taxation  in  that  state,  a  threatened  cloud  upon  title  does 
not  render  the  legal  remedy  inadequate,  and  is  not  a  ground  for 
injunction. 

30  See  cases,  infra,  e.  g.,  in  the  United  States  courts,  Indiana, 
Michigan,   Nebraska,   Wisconsin. 

31  Sec   cases,   infra,   e.   g.,  in   the   United   States   courts,    Colorado, 


e  -Mo  LQL'iTAELE  REAIEDIES.  652 

or  notice  of  resolution,  was  not  published  as  required 
by  statute  ;^2  that  the  assessment  is  apportioned  among 
the  owners  by  a  plan  or  method  that  involves  no  consid- 
eration of  the  benefits  to  be  received  by  them  from  the 
improvement  or  public  work.^^  The  equitable  doc- 
trines of  estoppel  and  acquiescence  have  a  frequent  ap- 
plication in  cases  of  this  class,  either  when  the  owner 
benefited  by  the  improvement  has  joined  in  the  peti- 
tion,3*  or,  with  full  knowledge  of  the  proceedings,  has 
stood  by  and  allowed  the  work  to  be  prosecuted  to  com- 
pletion without  objection,^^  The  complainant,  also, 
must  do  equity,  in  a  suit  to  enjoin  an  assessment  partly 
valid  and  partly  invalid,  by  making  payment  or  tender 
of  the  sum  justly  due;^^  but  where  the  assessment  is 
wholly  unauthorized  and  void,  no  tender  or  payment 
for  benefits  received  from  the  improvement  is  prerequi- 
site to  relief.^'^ 

§  365.  United  States  Courts — Federal  Taxes. — Under 
federal  statutes  no  injunction  can  issue  to  restrain  the 
collection  of  taxes  levied  by  the  federal  government.^^ 

Maryland,  Nebraska;  but  see  cases  in  Indiana  where  the  legal  rem- 
edy provided  by  statute  was  adequate. 

32  See  cases,  infra,  e.  g.,  in  Arkansas,  California,  Nebraska,  Oregon. 

33  See  cases,  infra,  e.  g.,  in  the  United  States  courts,  Michigan, 
Missouri,   New   York,    Ohio,   Oregon,   W^ashington,   Wisconsin. 

34  See  cases  infra,  e.  g.,  in  Kansas  and  Michigan. 

35  See  cases  infra,  e.  g.,  in  Indiana,  Kansas,  Michigan,  Nebraska, 
Ohio,  Oregon.  But  where  the  proceedings  are  wholly  void  and  un- 
authorized, it  has  frequently  been  held  that  such  silence  on  the 
owner's  part  does  not  estop  him  from  attacking  the  assessment 
even  after  the  completion  of  the  work;  compare  cases,  infra,  in 
Colorado,   Iowa,   Missouri,   Oregon. 

36  See  cases  infra,  e.  g.,  in  Indiana,  Missouri,  Nebraska,  and  es- 
pecially  in   Wisconsin. 

37  See  cases  infra,  e.  g.,  in  the  United  States  courts,  California 
(but  decisions  appear  to  conflict),  New  York,  Oregon,  Wisconsin. 

38  U.  S.  Kev.  Stats.,  §  3224;  Snyder  v.  Marks,  109  U.  S.  189,  3 
Sup.  Ct.  157,  27  L.  ed.  901;  Burgdorf  v.  District  of  Columbia,  7  App. 
D.  C.  405. 


653  ENJOINING  TAXATION;   FEDEKAL   COURTS.         §  366 

Tlie  only  remedy  of  the  tax-payer  is  to  pay  the  money 
and  then  sue  to  recover  it  back.  The  only  cases  where 
federal  courts  can  enjoin  taxation  are  those  where  state 
taxes  are  involved.  Therefore,  an  injunction  requir- 
ing a  collector  of  internal  revenue  to  accept  an  export 
bond  and  to  allow  the  withdrawal  of  goods  without  pay- 
ment of  a  tax  thereon,  will  not  issue,  for  it  in  effect 
would  restrain  the  collection  of  internal  revenue 
taxes.^* 

§  366.  State  Taxes;  Federal  Jurisdiction. — Of  course  the 
federal  courts  will  not  interfere  with  state  taxation 
unless  the  case  presents  some  features  which  make  it 
of  federal  cognizance.  So  long  as  a  state,  by  its  laws 
prescribing  the  mode  and  subject  of  taxation  does  not 
intrench  upon  the  legitimate  authority  of  the  Union, 
nor  violate  any  right  secured  by  the  Constitution  of  the 
United  States,  the  federal  court,  as  between  the  state 
and  its  citizen,  can  afford  no  relief,  no  matter  how  un- 
just, oppressive  or  onerous  the  tax  may  be.*'* 

If  the  claim  to  relief  clearly  within  the  federal  ju- 
risdiction is  fair  and  colorable,  not  fictitious  and  fraud- 
ulent, jurisdiction  attaches,  although  the  ultimate  de- 
cision may  be  against  the  right  claimed.  When  the 
jurisdiction  has  properly  attached,  it  extends  to  the 
whole  case,  and  to  all  the  issues  involved,  whether  of 
a  federal  or  non-federal  character,  and  the  court  has 
power  to  decide  upon  all  questions  involved.  There- 
fore, when  the  court  has  obtained  jurisdiction  on  some 
ground,  it  may  go  ahead  and  examine  into  the  legality 
of  a  state  tax,  whether  or  not  it  involves  a  federal  ques- 
tion, and  if  it  finds  there  is  not  an  adequate  remedy  at 
law  in  the  state  courts,  it  may  grant  an  injunction.** 

39  Miles  V.  Johnson,  59  Fed.  38. 

40  Kirkland  v.  Hotchkiss,  100  U.  S.  497,  25  L.  ed.  558. 

41  Louisville  Trust  Co.  v.  Stone,  107  Fed.  305,  46  C.  C.  A.  299. 


§  367  EQUITABLE  REMEDIES.  654 

Thus,  it  has  been  held  that  the  statutes  of  Kentucky 
do  not  afford  an  adequate  remedy  when  capital  stock 
of  a  corporation  is  illegally  assessed,  and  therefore  an 
injunction  may  issue.^^ 

A  suit  to  enjoin  the  collection  of  a  tax  imposed  by  a 
state  is  not  a  suit  against  a  state  within  the  meaning 
of  the  Eleventh  Amendment  of  the  federal  constitution. 
It  is  rather  a  suit  against  individuals,  seeking  to  en- 
join them  from  doing  certain  acts  which  they  assert 
to  be  by  the  authority  of  the  state,  but  which  the  com- 
plainant avers  to  be  without  lawful  authority.*^ 

§  367.  Adequate  Remedy  in  State  Courts. — The  federal 
courts  are  not  ousted  of  their  jurisdiction  to  grant  in- 
junctions in  tax  cases,  where  federal  questions  are  in- 
volved, because  a  state  furnishes  an  adequate  statutory 
remedy  in  its  own  courts.'*'*  And  this  is  true,  even 
though  the  state  statute  provides  that  its  remedy  shall 
be  exclusive  and  forbids  injunctions.*^ 

Where  a  valid  state  statute  gives  a  right  of  appeal 
to  the  courts  from  an  assessment,  and  no  federal  ques- 
tion is  involved,  it  is  an  adequate  remedy  for  any  error 
or  illegality.  Therefore,  a  tax-payer  who  does  not  avail 
himself  of  such  remedy  cannot  maintain  a  suit  in  the 
United  States  courts  to  enjoin  the  collection  of  a  tax 

42  Id. 

43  Taylor  v.  Louisville  &  N.  E.  Co.,  88  Fed.  350,  31  C.  C.  A.  537; 
Gregg  V.  Sanford,  65  Fed.  151,  12  C.  C.  A.  525;  Ex  parte  Tyler,  149 
U.  S.  164,  13  Sup.  Ct.  785,  39  L.  ed.  689;  Ex  parte  Ayers,  123  U.  S. 
443,  8  Sup.  Ct.  164,  31  L.  ed.  216.  This  decision  distinguishes  be- 
tween this  class  of  cases  and  those  where  breach  of  contract  by  the 
state  is  involved.  See,  also.  Union  Pac.  K.  Co.  v.  Alexander,  113 
Fed.  347. 

44  Brown  v.  French,  80  Fed.  166;  Ex  parte  Tyler,  149  U.  S.  164, 
13  Sup.  Ct.  785,  39  L.  ed.  689;  Cummings  v.  Merchants'  Nat.  Bank, 
101   U.  S.  153,  25  L.  ed.  903. 

45  Taylor  v.  Louisville  &  N.  R.  Co.,  88  Fed.  350,  31  C.  C.  A.  537. 


655  ENJOINING   TAXATION;   FEDERAL   COURTS.     §  368 

illegally  assessed.^^  Likewise,  where  state  laws  pro- 
vide for  an  appeal  to  a  board  of  equalization  for  redress 
against  an  excessive  tax,  a  party  who  fails  to  resort 
to  such  a  tribunal  cannot  obtain  relief  in  the  federal 
courts.'*'''  And  it  is  for  the  state  court  to  determine 
whether  or  not  the  statutory  remedy  is  exclusive,^® 

§  368.  Grounds  of  the  Equitable  Jurisdiction. — A  federal 
court  of  equity  will  not  enjoin  the  collection  of  a 
state  tax,  "except  where  it  may  be  necessary  to  protect 
the  rights  of  the  citizen  whose  property  is  taxed,  and 
he  has  no  adequate  remedy  by  the  ordinary  processes 
of  law.  It  must  appear  that  the  enforcement  of  the 
tax  would  lead  to  a  multiplicity  of  suits,  or  produce 
irreparable  injury,  or  where  the  property  is  real  estate, 
throw  a  cloud  upon  the  title  of  the  complainant,  before 
the  aid  of  a  court  of  equity  can  be  invoked."  "The  il- 
legality of  the  tax  and  the  threatened  sale  ....  for 
its  payment  constitute  of  themselves  alone  no  ground 
for  such  interposition.  There  must  be  some  special  cir- 
cumstances attending  a  threatened  injury  of  this  kind, 
distinguishing  it  from  a  common  trespass,  and  bring- 
ing the  case  under  some  recognized  head  of  equity  juris- 
diction."^^    Thus,  the  mere  fact  that  a  tax  is  unconsti- 

46  Pittsburgh,  C,  C.  &  St,  L.  Ry.  Co.  v.  Board  of  Pub.  Works, 
172  U.  S.  32,  19  Sup.  Ct.  90,  43  L.  ed.  354. 

47  Altschul  V.  Gittings,  86  Fed.  200;  Dundee  Mortgage  Trust  Inv. 
Co.  V.  Charlton,  13  Saw.  25,  32  Fed.  192. 

48  Northern  Pac.  Railroad  Co.  v.  Patterson,  154  U.  S.  130,  14 
Sup.   Ct.  977,  38  L.   ed.   934. 

49  Dows  V.  City  of  Chicago,  11  Wall.  108,  20  L.  ed.  65;  Arkansas 
B.  &  L.  Assn.  V.  Madden,  175  U.  S.  269,  20  Sup.  Ct.  119,  44  L.  ed. 
159;  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Board  of  Pub.  Works  of 
W.  Va.,  172  U.  S.  32,  19  Sup.  Ct.  90,  43  L.  ed.  354;  Pacific  Express 
Co.  V.  Seibert,  142  U.  S.  339,  12  Sup.  Ct.  250,  30  L.  ed.  1035;  Shelton 
V.  Piatt,  139  U.  S.  596,  11  Sup.  Ct.  646,  35  L.  ed.  276;  Union  Pac. 
Ry,  Co.  V.  Cheyenne,  113  U.  S.  516,  5  Sup.  Ct.  601,  28  L.  ed.  109S; 
State  Railroad  Tax  Cases,  92  U.  S.  616,  23  L,  ed,  663;  Hannewinkle 


S  369  EQUITABLE  KEMEDIES.  656 

tutional  is  no  ground  for  an  injunction.^*^  And  an  in- 
junction will  not  be  granted  when  full  relief  can  be  ob- 
tained by  an  action  at  law  to  recover  the  amount  paid  f^ 
nor  where  there  is  a  mere  irregularity  in  the  assess- 
ment,^2  as  where  shares  of  stock  are  listed  to  the  corpo- 
ration instead  of  to  the  stockholders;^^  or  where  the 
tax-roll  is  completed  after  the  statutory  time;^^  nor 
because  of  a  mere  error  in  judgment  on  the  part  of  the 
assessing  officers.  Fraud  or  misconduct  must  be 
proved,  as  well  as  facts  bringing  the  case  under  some 
recognized  head  of  equity  jurisdiction.^* 

§  369.  Personal  Property. — A  federal  court  will  not, 
except  under  very  special  circumstances,  enjoin  the  col- 
lection of  a  tax  which  is  only  a  personal  charge  against 
the  party  taxed  or  a  charge  against  his  personal  prop- 
erty.    Presumptively,  the  remedy  at  law  is  adequate  in 

V.  City  of  Georgetown,  15  Wall.  547,  21  L.  ed.  231;  Bank  of  Ken- 
tucky V,  Stone,  88  Fed.  383;  Taylor  v.  Louisville  &  IS.  R.  Co.,  88 
Fed.  350,  31  C.  C.  A.  537;  Eobinson  v.  City  of  Wilmington,  25  U.  S. 
App.  144,  65  Fed.  856,  13  C.  C.  A,  177;  Tilton  v.  Oregon  C.  M.  R. 
Co.,  3  Saw.  22,  Fed.  Cas.  No.  14,055;  Union  &  Planters'  Bank  v. 
City  of  Memphis,  111  Fed.  561,  49  C.  C.  A.  455. 

50  Pacific  Exp.  Co.  v.  Seibert,  142  U.  S.  339,  12  Sup.  Ct.  250,  30 
L.  ed.  1035;  Allen  v.  Pullman's  Palace  Car  Co.,  139  U.  S.  661,  11 
Sup.  Ct.  682,  35  L.  ed.  304;  Shelton  v.  Piatt,  139  U.  S.  596,  11  Sup. 
Ct.   646,   35   L.   ed.   276. 

Bi  Arkansas  B.  &  L.  Assn.  y.  Madden,  175  U.  S.  269,  20  Sup.  Ct. 
119,  44  L.  ed.  159;  Eobinson  v.  City  of  Wilmington,  65  Fed.  856,  25 
U.  S.  App.  144,  13  C.  C.  A.  177;  Shelton  v.  Piatt,  139  U.  S.  596,  11 
Sup.  Ct.  646,  35  L.  ed.  276;  State  Railroad  Tax  Cases,  92  U.  S.  616, 
23  L.  ed.  663;  Dows  v.  City  of  Chicago,  11  Wall.  108,  20  L.  ed.  65. 

B2  State  Railroad  Tax  Cases,  92  U.  S.  616,  23  L.  ed.  663;  Douglas 
County  V.  Stone,  110  Fed.  812. 

53  Robinson  v.  City  of  Wilmington,  25  U.  S.  App.  144,  65  Fed. 
856,  13  C.  C.  A.  177. 

54  Woodman  v.  Ely,  2  Fed.  839. 

55  Maish  V.  Arizona,  164  U.  S.  599,  17  Sup.  Ct.  193,  41  L.  ed.  567; 
Albuquerque  Nat.  Bank  v.  Perea,  147  U.  S.  87,  13  Sup.  Ct.  194,  37 
L.  ed.  91;  Woodman  v.  Ely,  2  Fed,  839. 


«57  ENJOINING   TAXATION;   FEDEEAL   COURTS.     §  370 

such  cases.  And  the  mere  fact  that  the  property  is 
used  in  interstate  commerce  is  not  sufficient  to  warrant 
an  injunction;^®  nor  will  it  issue  even  though  the  com- 
plainant is  a  non-resident  and  the  tax  is  therefore  ab- 
solutely illegal.'^'^  Where,  however,  the  collection  of  a 
tax  on  personal  property  involves  a  threat  of  irrepara- 
ble injury  and  inconvenience  to  the  public,  an  injunc- 
tion may  issue.  Thus,  where  the  business  and  traffic 
of  a  railroad  company  will  be  stopped  by  a  seizure  of 
its  cars,  an  injunction  is  proper. '^^ 

§  370.  Irreparable  Injury. — When  the  remedy  at  law 
for  an  illegal  tax  is  inadequate  in  the  state  courts,  a 
federal  court  may,  after  acquiring  jurisdiction,  inter- 
fere by  injunction  to  prevent  irreparable  injury.  Thus, 
under  the  Kentucky  law,  an  action  to  recover  illegal 
taxes  paid  will  not  lie  unless  they  are  paid  under 
duress,  and  yet  in  certain  cases  a  penalty  of  fifty  dollars 
per  day  is  provided  where  payment  is  delayed.  The 
legal  remedy,  therefore,  of  defending  a  tax  suit  is  at- 
tended with  a  great  and  oppressive  burden  of  risk,  and 
is  entirely  inadequate.  Hence,  an  injunction  may  is- 
sue.^'    Upon    the  same    principle   an    injunction    will 

56  Linehan  Ey.  &  Transfer  Co.  v.  Pendergrass,  70  Fed.  1,  16  C. 
C.  A.  585;  Nye,  Jenks  &  Co.  v.  Town  of  Washburn,  125  Fed.  817; 
Shelton  v.  Piatt,  139  U.  S.  596,  11  Sup.  Ct.  646,  35  L.  ed.  276;  Union 
Pac.  E.  Co.  V.  Lincoln  Co.,  2  Dill.  279,  Fed.  Cas.  No.  14,379.  In 
Hazzard  v.  O'Bannon  (Cir.  Ct.,  E.  D.  Mo.),  36  Fed.  854,  it  was 
held,  however,  that  an  injunction  will  issue  to  restrain  the  collection 
of  an  illegal  excess  on  personal  property  when  the  writ  is  not  ab- 
Bolutely  void,  and  would  therefore  protect  the  sheriff  in  an  action 
of  trespass. 

67  City  of  Milwaukee  v.  Koeffler,  116  U.  S.  219,  6  Sup.  Ct,  372, 
29  L.  ed.  612. 

58  Southern  Ey.  Co.  v.  City  of  Asheville,  69  Fed.  359. 

59  Bank  of  Kentucky  v.  Stone,  88  Fed.  383.  Affirmed,  Stone  ▼. 
Bank  of  Kentucky,  174  U.  S.  799,  19  Sup.  Ct.  881,  43  L.  ed.  1177; 
First  Nat.  Bank  v.  City  of  Covington,  103  Fed.  523. 

Equitable  Eemedies,  Vol.  1—42 


§  371  EOUITABLE  REMEDIES.  658 

issue  when  the  collection  of  an  illegal  tax  will  destroy 
a  corporate  franchise.  This  rule  was  laid  down  by 
Chief  Justice  Marshall  in  the  case  of  Osborn  v.  Bank 
of  the  United  States. ^^  In  that  case,  the  state  of  Ohio 
hrtd  imposed  an  illegal  tax  upon  the  Bank  of  the  United 
States  with  the  avowed  intention  of  driving  it  from  the 
state.  The  agent  whose  duty  it  was  to  collect  could  not 
properly  respond  in  damages.  Consequently,  the  fran- 
chise of  the  bank  would  have  been  of  no  effect  so  far 
as  it  authorized  the  transaction  of  business  in  Ohio  un- 
less the  injunction  had  been  granted.  Therefore,  the 
injunction  was  allowed,  to  prevent  irreparable  injury. 
The  United  States  may  enjoin  the  enforcement  of  a 
state  tax  on  lands  allotted  in  severalty,  and  which  it 
holds  in  trust  for  Indians,  for  the  legal  remedy  is  in- 
adequate.^^ 

§  371.  Valuation  Resulting  in  Unjust  Discrimination. — 
To  the  general  rule  there  seems  to  be  one  excei>tion. 
^'AVhen  the  overvaluation  of  property  has  arisen  from 
the  adoption  of  a  rule  of  appraisement  which  conflicts 
with  a  constitutional  or  statutory  direction,  and  oper- 
ates unequally,  not  merely  on  a  single  individual,  but 
on  a  large  class  of  individuals  or  corporations,  a  party 
aggrieved  may  resort  to  equity  to  restrain  the  exaction 
of  the  excess,  upon  payment  or  tender  of  what  is  ad- 
mitted to  be  due."^2  So,  where  a  standard  of  valua- 
tion results  in  discrimination,  the  parties  injured  may 
obtain  an  injunction.^^     Likewise,  an  injunction  will 

60   9  Wheat.  738,  6  L.  ed.  204, 

ci  "United  States  v.  Rickert,  188  U.  S.  432,  23  Sup.  Ct.  478,  47 
L.  ed.  532. 

62  Stanley  v.  Supervisors,  121  U.  S.  535,  7  Sup.  Ct.  1234,  30  L.  ed. 
1000;  Cumming3  v.  Merchants'  Nat.  Bank,  101  U.  S.  153,  25  L.  ed. 
903;  Pelton  v.  Commercial  Nat.  Bank,  101  U.  S.  143,  25  L.  ed.  901; 
German  Nat.  Bank  v.  Kimball,  103  U.  S.  732,  26  L.  ed.  469. 

63  Trustees  Cincinnati  Southern  Ey.  v.  Guenther,  19  Fed.  395. 


659         ENJOINING  TAXATION;  FEDERAL  COURTS.     §§  372,373 

be  issued  when  state  ofiScers,  by  a  systematic,  inten- 
tional and  illegal  under-valuation  of  other  property, 
make  an  unjust  discrimination  against  the  plaintiff, 
the  federal  jurisdiction  arising  because  of  the  equal 
protection  of  the  laws  guaranteed  by  the  Fourteenth 
Amendment.^^  But  the  proof  of  discrimination  must 
be  clear  and  convincing  before  the  injunction  will  is- 
sue.^^  If  it  appears,  however,  that  the  assessing  offi- 
cers intentionally  and  habitually  violate  the  law  in 
this  regard,  it  need  not  affirmatively  appear  that  they 
do  so  with  intent  to  injure  the  complainant  and  his 
class  of  tax-payers.^® 

§  372.  Multiplicity  of  Suits — This  ground  of  jurisdic- 
tion has  met  with  abundant  recognition  in  cases  of  the 
"Second  Class"  and  of  the  "Fourth  Class"  f^  but  ap- 
pears to  have  been  rejected  in  one  case  of  the  "Third 
Class,"^^  where  the  equity  arises  from  the  fact  that  the 
burden  of  an  illegal  tax  falls  on  numerous  individuals 
in  the  same  way.  This  class  is,  at  any  rate,  confined 
to  cases  where  the  tax  as  a  whole  is  invalid  ;^^  and  in 
any  event  the  jurisdiction  is  asserted  to  prevent  a  prob- 
able, not  a  possible,  multiplicity  of  suits.'^'* 

§  373.  Cloud  on  Title.— Where  an  invalid  tax,  valid 
on  its  face,  casts  a  cloud  on  the  title  of  the  plaintiff's 

64  Louisville  Trust  Co.  v.  Stone,  107  Fed.  305,  46  C.  C.  A.  299; 
Southern  Ry.  Co.  v.  North  Carolina  Corp.  Com.,  104  Fed.  700;  Nash- 
ville, C.  &  St.  L.  Ey.  Co.  V.  Taylor,  86  Fed.  168. 

65  Coulter  V.  Louisville  &  N.  R.  Co.,  196  U.  S.  599,  25  Sup.  Ct. 

342,  49  L.  ed.  ;  Michigan  Railroad  Tax  Cases,  138  Fed.  223,  244- 

248;  Louisville  Trust  Co.  v.  Stone,  107  Fed.  305,  46  C.  C.  A.  299. 

66  Taylor  v.  Louisville  &  N.  R.  Co.,  88  Fed.  350,  31  C.  C.  A.  537. 

67  See  ante,  §  361,  notes  16,  17. 

68  People's  Nat.  Bank  v.  Marye,  107  Fed.  570. 

69  See  ante,  §  361,  note  22. 
TO  See  ante,  §  361,  note  16. 


9  374  EQUITABLE  KEMEDIES.  660 

real  estate,  an  injunction  will  issueJ^  Thus,  where  an 
illegal  tax  on  the  stock  of  a  national  bank  is  made  a 
lien  on  its  real  estate,  its  collection  or  enforcement  may 
be  enjoined.'^^  And  where  an  illegal  tax  against  a 
common  carrier  is  made  a  lien  on  its  realty,  although 
personalty  is  to  be  resorted  to  first,  equitable  relief 
will  be  allowed.'*  Likewise,  it  will  be  allowed  where 
a  settlement  of  illegal  back  taxes  will,  when  the  proper 
steps  are  taken,  constitute  a  lien  on  real  estate;'^*  or 
where  an  assessment  willfully  made  in  disregard  of  a 
statute  is  made  a  lien  on  realty ,'^°  although  a  Board  of 
Equalization  has  refused  relief. 

There  is  no  cloud  upon  the  title,  however,  which  jus- 
tifies the  interference  of  a  court  of  equity,  where  the 
proceedings  are  void  upon  their  face;  that  is,  where 
the  same  record  which  must  be  introduced  to  estab- 
lish the  title  claimed  will  show  that  there  is  no  title.'^* 

§  374.  State  Tax  in  Violation  of  Contract. — Where  a 
state  imposes  a  tax  on  a  corporation  in  violation  of  the 
terms  of  its  charter,  a  federal  court  may  issue  an  in- 
junction because  of  the  violation  of  contract'^'  And 
where  the  corporation  itself  refuses  to  sue,  the  suit 

71  Tilton  V.  Oregon  C.  M.  E.  Co.,  3  Saw.  22,  Fed.  Cas,  No.  14,055; 
Taylor  v.  Louisville  &  N.  E.  Co.,  31  C.  C.  A.  537,  88  Feci.  350;  Ogden 
City  V.  Armstrong,  168  U.  S.  224,  18  Sup,  Ct.  98;  Kansas  City,  Ft. 
8.  &  M.  E.  Co.  V.  King,  120  Fed.  615;  People's  Sav.  Bank  v.  Lay- 
man, 134  Fed.  635;  Gregg  v.  Sanford,  65  Fed.  151,  12  C.  C.  A.  525; 
"Union  Pac.  Ey.  Co.  t.  Cheyenne,  113  U.  S.  516,  5  Sup.  Ct.  601,  28  L. 
ed.  1098. 

72  Brown  v.  French,  80  Fed.  166. 

73  Southern  Ey.  Co,  v.  Asheville,  69  Fed.  359. 
T4  Sanford   v.   Gregg,   58   Fed.   620. 

75  California  &  O.  Land  Co.  v.  Gowen,  48  Fed.  771. 

76  Hannewinkle  v.  City  of  Georgetown,  15  "Wall.  547,  21  L.  ed.  231. 

77  Dodge  V.  Woolsey,  18  How.  331,  15  L.  ed.  401;  Detroit,  G.  H. 
4  M,  E.  Co.  V.  Powers,  138  Fed.  264. 


661     ENJOINING    TAXATION;    FEDEEAL    COURTS.     §§  375,370 

may  be  brought  by  a  stockholder,  the  corporation  be- 
ing made  a  party  defendant* 

§  375.  Injunction  Warranted  by  State  Laws. — Where 
the  federal  court  acquires  jurisdiction  of  the  case  and 
facts  are  shown  which,  under  the  state  law,  warrant 
the  issuance  of  an  injunction,  such  relief  may  be 
awarded,  whether  the  facts  are  such  as  ordinarily  war- 
rant such  relief  in  federal  courts,  or  not.  Thus,  under 
section  5848  of  the  Ohio  statutes  providing  that  the 
illegal  levy  of  taxes  and  assessments,  or  either,  may  be 
enjoined,  a  federal  court  may  enjoin  an  increase  in  the 
assessment  of  a  national  bank,  illegal  because  made 
by  a  board  of  equalization  without  notice.'^*  Under 
the  same  statute,  the  federal  court  may  enjoin  the  col- 
lection of  any  tax  found  to  be  illegal,®"  such,  for  in- 
stance, as  a  tax  on  federal  bonds  which  are  exempt  from 
taxation.®^  Likewise,  where,  under  the  decisions  of  the 
supreme  court  of  Kansas  an  injunction  will  issue 
when  one  class  of  property  is  intentionally  assessed  in 
greater  proportion  than  another,  federal  courts,  in 
like  cases  coming  from  that  state,  will  grant  an  in- 
junction.®^  And,  following  the  supreme  court  of  Wash- 
ington, an  injunction  will  be  granted  where  there  has 
been  an  unjust  discrimination.^^ 

§  376.  Tender. — The  collection  of  a  tax  valid  in  part 
cannot  be  enjoined  unless  the  party  seeking    the    in- 

78  Dodge  V,  Woolsey,  18  How.  331,  15  L.  ed.  401. 

79  Mercantile  Nat.   Bank  v.  Hubbard,   105  Fed.  809,  45  C,   C.  A, 
66. 

80  Cummings  v.  Merchants'  Nat.  Bank,  101  U.  S.  153,  25  L.  ed.  903; 
Brinckerhoff  v.  Brumfield,  94  Fed.  422. 

81  Grether  v.  Wright,  75  Fed.  742,  23  C.  C.  A.  498. 

82  Chicago,  B.  &  Q.  E.  Co.  v.  Board  of  Commissioners  of  Eepublic 
Co.,  67  Fed.  411,  14  C.  C.  A.  456. 

83  First  Nat.  Bank  v.  Hungate,  62  Fed.  548. 


§  377  EQUITABLE  KEMEDIES.  6(32 

junction  has  paid  or  tendered,  nnconditionally,  so  much 
of  the  tax  as  it  is  certain  he  should  pay.^"*  An  aver- 
ment of  readiness  to  pay,  or  a  tender  made  in  the  bill, 
is  not  sufficient.^^  If  it  appears  that  a  sufficient  sum 
has  not  been  tendered,  the  complainant  must  actually 
tender  the  true  amount  before  he  can  obtain  relief.^* 
And  upon  application  of  the  defendant,  he  may  be  com- 
pelled to  pay  into  court.^^ 

When  a  tax  is  wholly  void,  it  is  not  necessary  to 
make  a  tender  as  a  prerequisite  to  an  injunction  f^  nor 
is  it  necessary  when  county  officers  have  declared  in 
advance  that  they  will  not  accept  less  than  the  full 
amount.^' 

§  877.  Property  in  Hands  of  Federal  Eeceiver. — When 
property  is  in  the  hands  of  a  receiver  appointed  by  a 
federal  court,  an  injunction  may  issue  pendente  lite 
forbidding  state  taxing  officers  to  collect  disputed  taxes 

84  Northern  Pac.  R.  Co,  v.  Clark,  153  U.  S.  252,  14  Sup.  Ct.  809, 
38  L,  ed.  706j  Albuquerque  Nat.  Bank  v.  Perea,  147  U.  S.  87,  13  Sup. 
Ct.  194,  37  L.  ed.  91;  Dundee  Mortgage  Trust  Inv.  Co.  v.  Parrish, 
24  Fed.  197;  German  National  Bank  v.  Kimball,  103  U.  S.  732,  2G 
L.  ed.  469;  State  Eailroad  Tax  Cases,  92  U,  S.  616,  23  L.  ed.  674; 
Parmley  v.  Eailroad  Companies,  3  Dill.  C.  C.  25,  Fed.  Cas.  No. 
10,768;  Morenci  Copper  Co.  v.  Freer,  127  Fed.  199;  People's  Nat. 
Bank  v.  Marye,  191  U.  S.  272,  24  Sup.  Ct.  68,  48  L.  ed.  180. 

85  Chicago,  B.  &  Q.  E.  Co.  v.  Board  of  Commissioners  of  Norton 
Co.,  67  Fed.  413,  14  C.  C.  A.  458;  Huntington  v.  Palmer,  7  Saw.  355, 
8  Fed.  449;  State  Eailroad  Tax  Cases,  92  U.  S.  616,  23  L.  ed.  674. 

86  Chicago,  B.  &  Q.  E.  Co.  v.  Board  of  Commissioners  of  Norton 
Co.,  67  Fed.  413,  14  C.  C.  A.  458. 

87  Eichmond  &  D.  E.  Co.  v.  Blake,  49  Fed.  904. 

88  Fargo  V.  Hart,  193  U.  S.  490,  24  Sup.  Ct.  498,  48  L,  ed.  761; 
First  Nat.  Bank  v.  City  of  Covington,  103  Fed.  523;  Albany  City 
Nat.  Bank  v.  Maher,  19  Blatchf.  175,  9  Fed.  884.  And  this  rule 
holds,  although  a  state  law  requires  that  the  amount  of  the  tax 
must  be  deposited  before  suit:  Northern  etc.  E.  E.  Co.  v.  Kurtzman, 
82  Fed.  241. 

88  First  Nat.  Bank  v.  Hungate,  62  Fed.  548. 


663  ENJOINING   TAXATION;   FEDERAL   COURTS.  §  378 

levied  against  it.^"  The  property  being  in  custody 
of  the  court,  any  charge  against  it,  even  for  taxes,  can 
be  enforced  against  it  only  through  the  orders  of  the 
court.  Therefore  the  court  may  well  insist  that  the 
hands  of  the  executive  officers  be  tied  until  the  issue 
can  be  determined. 

§  378.  Special  Assessments. — The  rules  as  to  local  as- 
sessments are  similar  to  those  relating  to  general  tax- 
ation. An  injunction  will  not  ordinarily  be  granted 
unless  the  case  is  brought  within  some  recognized  head 
of  equity  jurisdiction,  other  than  mere  illegality.^^  An 
injunction  will  not  issue  because  of  a  mere  irregularity 
in  the  proceedings.^^  Where  a  state  statute  provides 
for  an  appeal  from  an  assessment  on  questions  of  law 
alone,  it  is  an  adequate  remedy  for  errors  and  irregu- 
larities occurring  subsequent  to  the  adoption  of  the 
ordinance  and  the  making  of  the  contract  under  which 
the  improvement  was  constructed,  and  therefore  no  in- 
junction will  issue  to  restrain  the  collection  of  an  as- 
sessment on  the  ground  of  such  irregularities.^^ 

Where  an  invalid  local  assessment  casts  a  cloud 
upon  the  title  to  real  estate,  and  the  defect  is  not  ap- 
parent upon  the  face  of  the  proceedings,  an  injunction 
is  the  proper  remedy.  Thus,  where  statute  makes  the 
consent  of  a  majority  of  the  property  owners  essential 
to  the  validity  of  an  assessment  which  is  a  lien  on  laud, 
an  injunction  may  be  obtained  if  the  assessment  is  lev- 

90  Clark  v.  McGhee,  87  Fed.  789;  Ex  parte  Chamberlain,  55  Fed. 
704;  Ex  parte  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  785,  37  L.  ed.  689. 
See,  also,  ante,  chapter  IV,  §  168. 

91  Ogden  City  v.  Armstrong,  1G8  U.  S.  224,  18  Sup.  Ct.  98,  42  L. 
ed.  444. 

92  Ogden  City  v.  Armstrong,  168  U.  S.  224,  18  Sup.  Ct.  98,  43 
L.   ed.   444. 

93  Rickcords  v.  City  of  Hammond,  67  Fed.  380. 


S  379  EQUITABLE  REMEDIES.  664 

ied  without  such  consent,  for  the  defect  is  not  appar- 
ent on  the  face  of  the  proceedings.**  A  federal  court 
may  enjoin  the  enforcement  of  a  special  assessment 
made  under  a  rule  or  system  in  violation  of  the  Consti- 
tution of  the  United  States.''  Thus,  an  injunction  is 
proper  when  the  assessment  is  rested  upon  a  basis 
which  excludes  any  consideration  of  benefits.^® 

Where  an  owner  of  land  subject  to  a  mortgage  joins 
in  a  petition  for  the  improvement,  a  subsequent  owner 
who  acquires  title  by  foreclosure  is  not  estopped  from 
attacking  the  assessment.*^  When  the  complainant 
has  been  guilty  of  laches,  injunctive  relief  will  be  de- 
nied. Thus,  after  an  assessment  has  been  levied  for 
seven  years  it  is  too  late  to  enjoin  a  threatened  sale 
thereunder.** 

Where  the  assessment  is  wholly  void,  it  is  not  neces- 
sary to  make  any  tender  for  the  benefits  conferred  as 
a  prerequisite  to  relief.** 

§  379.  Alabama. — In  Alabama,  "in  addition  to  ille- 
gality, hardship,  or  irregularity,  the  case  must  be 
brought  within  some  of  the  recognized  foundations  of 
equitable  jurisdiction,  and  ....  mere  errors  of  excess 
in  valuation,  or  hardships,  or  injustice  of  the  law,  or 
any  grievance  which  can  be  redressed  by  a  suit  at  law, 
either  before  or  after  payment  of  the  taxes,  will  not 

94  Ogden  City  v.  Armstrong,  168  U.  S.  224,  18  Sup.  Ct.  98,  42  L. 
ed.  444, 

95  Village  of  Norwood  v.  Baker,  172  U.  S.  269,  19  Sup.  Ct.  187, 
43  L.  ed.  443;   Craighill  v.  Lambert,  168  U.  S.  611,  18  Sup.  Ct.  217, 

42  L.  ed.  599.     See,  also,  Charles  v.  City  of  Marion,  98  Fed.   166. 

96  Village   of  Norwood  v.  Baker,   172  U.  S.   269,   19  Sup.  Ct.   187, 

43  L.  ed.  443;  Zehnder  v.  Barber  Asphalt  Co.,  106  Fed.  103;  Bidwell 
V.  Huff,  103  Fed.  362;  Lyon  v.  Town  of  Tonawanda,  98  Fed.  361. 

97  Lyon  V.  Town  of  Tonawanda,  98  Fed.  361. 

98  Boss  V.  City  of  Portland,  105  Fed.  682. 

»9  Village  of  Norwood  v.  Baker,  172  U.  S.  269,  19  Sup.  Ct.  187,  43 
L.  ed.  443. 


€65    ENJOINING  TAXATION;  AEIZONA-AEKANSAS.    5§  380  381 

justify  a  court  of  equity  to  interfere  by  injunction  to 
stay  collection  of  the  tax."  Thus,  even  though  an  il- 
legal tax  will  cast  a  cloud  on  title,  it  will  not  be  en- 
joined where  there  is  an  adequate  remedy  at  law.^"" 

The  tax-payer  is  not  entitled  to  any  relief  whatever 
unless  the  legal  part  of  the  tax  is  either  tendered  or 
paid.i«* 

§  380.  Arizona. — In  Arizona,  an  injunction  will  issue 
to  restrain  the  collection  of  a  tax  on  property  exempt 
from  taxation.  Thus,  shares  of  stock  in  a  corporation 
being  a  class  of  property  which  takes  the  situs  of  its 
owner,  an  injunction  will  be  granted  to  restrain  the 
collection  of  a  tax  on  such  property  elsewhere.^"^  Mere 
errors  in  the  assessment,  however,  are  not  sufficient  to 
warrant  relief. ^°^ 

In  order  to  obtain  relief  it  is  usually  necessary  for 
the  plaintiff  to  tender  or  pay  the  part  of  the  tax  which 
is  legal.  A  tender  may  possibly  be  excused  after  sale 
when  the  purchaser  is  a  party  who  was  in  duty  bound 
to  pay  the  tax.^^* 

§  381.  Arkansas. — Where  the  assessment  is  commit- 
ted by  law  to  certain  commissioners,  a  mere  allegation 
of  excess  is  not  sufficient  to  warrant  an  injunction.  "In 
the  absence  of  fraud,  intentional  wrong,  or  error  in  the 
method  of  assessment,  the  finding  by  the  board  cannot 

100  Boyd  V.  City  of  Selma,  96  Ala.  144,  11  South.  393,  16  L.  E.  A. 
729. 

101  Nashville,  C.  &  St.  L.  Ey.  Co.  v.  City  of  Attalla,  118  Ala.  202, 
24  South.  450;  Tallahassee  Mfg.  Co.  v.  Spigener,  49  Ala.  262. 

102  National  Bank  of  Arizona  v.  Long   (Ariz.),  57  Pac.  639. 

103  County  of  Cochise  v.  Copper  Queen  Consol.  Min.  Co.  (Ariz.), 
71  Pac.  946. 

104  Murray  v.  Evans  (Ariz.),  64  Pac.  412. 


§  381  EQUITABLE  REMEDIES.  666 

be  overtnrnecl  by  evidence  going  only  to  show  an  error 
of  judgment,'""^ 

An  injunction  will  issue  to  restrain  the  collection  of 
a  tax  on  exempt  property,  provided  irreparable  injury 
would  follow  refusal.  Thus,  an  injunction  has  been 
granted  against  a  sale  of  exempt  railroad  property  for 
non-payment  of  a  tax,  the  court  saying : — "The  illegality 
of  the  taxes  alone  could  not  give  the  court  jurisdiction 
to  restrain  the  sale,  but  the  sale  of  the  road  would 
most  probably,  if  not  necessarily,  result  in  the  stop- 
page of  its  trains  and  the  suspension  of  its  business  for 
an  indefinite  time,  and  until  the  company  could  regain 
possession;  an  injury  which,  because  the  actual  dam- 
ages by  reason  of  their  uncertain  nature,  could  not 
be  ascertained,  would  be  irreparable,  and  to  prevent 
which  it  was  the  duty  of  the  court  to  interpose  by  in- 
junction."^^^ 

An  injunction  will  issue  to  restrain  the  collection  of 
an  illegal  tax  which  is  a  lien  on  land  when  extrinsic 
evidence  is  necessary  to  show  its  invalidity.^^'^  In  such 
a  case,  it  seems,  a  tax-payer  may  sue  on  behalf  of  him- 
self and  all  other  tax-payers  in  the  county,  the  court 
taking  jurisdiction  to  prevent  multiplicity  of  suits.^°* 

An  injunction  will  not  issue  against  the  collection  of 
an  excessive  tax  good  in  part  unless  the  amount  admit- 
ted to  be  legally  due  is  paid  or  tendered  before  suit.^^® 

105  Wells,  Fargo  &  Co. 's  Express  v.  Crawford  County,  63  Ark. 
576,  40  S.  W.  710,  37  L.  R.  A.  371. 

106  Oliver  v.  Memphis  etc.  E.  E.  Co.,  30  Ark.   128. 

107  Greedup  et  al.  v.  Franklin  County,  30  Ark.  101. 

108  Id.  See  quotation  from  the  opinion  in  this  case,  in  1  Pom.  Eq. 
Jur.  (3d  ed.),  §  260,  note  (d).  The  jurisdiction  on  this  ground  is  now 
expressly  conferred  by  the  constitution,  1874,  art.  16,  §  13:  Little 
Rock  V.  Prathet,  46  Ark.  471;  Taylor  v.  Pine  Bluff,  34  Ark.  603;  Little 
Rock  V.  Barton,  33  Ark.  436. 

109  "Wells,  Fargo  &  Co. 's  Express  v.  Crawford  County,  63  Ark.  576, 
40  S.  W.  710,  37  L.  R.  A.  371. 


6G7  ENJOINIJN'G   TAXATION;    CALIFOENIA.        §§  382,  :;S3 

This  is  upon  the  principle  that  "he  who  seeks  equity 
must  do  equity."  Upon  the  same  principle,  an  injunc- 
tion will  not  be  granted  against  the  issuance  of  a  tax 
deed  after  sale  for  excessive  taxes,  unless  the  amount 
really  due  is  tendered  or  paid.^^*^ 

§  382.  Special  Assessments. — When  a  special  assess- 
ment is  levied  on  land  without  authority,  an  injunc- 
tion will  issue.  Thus,  where  a  statute  requires  pub- 
lication of  the  ordinance  creating  the  district  within 
five  days,  no  jurisdiction  to  make  the  levy  attaches  un- 
less such  publication  is  made.  Therefore  an  injunc- 
tion will  issue  to  restrain  the  collection  of  an  assess- 
ment when  the  proper  publication  has  not  been  made.^** 

§  383.  California. — In  California,  it  is  held  that  an 
injunction  will  not  issue  to  restrain  the  collection  of  a 
tax,  unless  the  case  is  brought  under  some  recognized 
head  of  equity  jurisdiction.  It  must  appear  that  en- 
forcement would  lead  to  a  multiplicity  of  suits,  or  pro- 
duce irreparable  injury,  or  where  the  property  is  real 
estate,  throw  a  cloud  upon  the  title  of  the  complain- 
antii2 

An  injunction  will  not  issue  to  restrain  the  collection 
of  a  tax  on  personal  property,  unless  the  injury  is  ir- 
reparable; and  where  the  tax-qollector  is  able  to  re- 
spond in  damages,  the  injury  is  not  irreparable;^^* 
nor  to  restrain  the  collection  of  a  tax  because  of  irregu- 
larities which  could  have  been  corrected  by  an  appeal 
to  the  board  of  equalization,  when  such  appeal  has  not 
been  made.^^*  Likewise,  it  will  not  issue  against  col- 
no  Worthen  v.  Badgett,  32  Ark.  496. 

111  Crane  v.  City  of  Siloam  Springs,  67  Ark.  30,  55  S.  W.  955. 

112  Savings  &  Loan  Soc.  v.  Austin,  46  Cal.  417. 

113  Eitter  v.  Patch,  12  Cal.  298. 

114  Merrill  v.  Gorham,  6  Cal.  41. 


S  383  EQUITABLE  EEMEDIES.  668 

lection  of  a  tax  levied  by  an  irrigation  district,  because 
of  mere  irregularities,  unless  the  tax-payer  shows  an 
injury  to  himself.  Thus,  a  complaint  which  alleges 
that  a  board  of  equalization  has  raised  assessments  af- 
ter it  has  lost  jurisdiction,  does  not  state  a  cause  of 
action  unless  it  shows  that  plaintiff's  assessment  has 
been  raised,  or  that  other  assessments  have  been  low- 
ered, so  as  to  increase  plaintiff's  proportionate  liabil- 
ity.115 

"A  tax-payer  may  enjoin  the  collection  of  a  tax 
founded  upon  an  assessment  fraudulently  and  cor- 
ruptly made  with  the  intention  of  discriminating 
against  him,  and  for  the  purpose  of  causing  him  to  pay 
more  than  his  share  of  public  taxes."^^^  "But  in  ap- 
pealing to  a  court  of  equity  for  relief  by  way  of  injunc- 
tion against  such  fraudulent  assessment,  the  plaintiff 
must  show  by  his  complaint  that  he  has  paid  or  ten- 
dered the  amount  of  taxes  which  would  have  been  due 
from  him  if  his  property  had  been  assessed  at  what 
he  concedes  would  have  been  a  fair  valuation,  and  he 
must  in  addition  offer  to  pay  what  the  court  shall  find 
to  be  equitable  and  just."^^'^ 

Cloud  on  Title. — An  injunction  will  issue  against  the 
collection  of  an  illegal  tax  when  the  invalidity  of  the 
assessment  will  not  appear  upon  the  face  of  a  deed 
given  to  a  purchaser  at  a  tax  sale.     Thus,  where  an 

115  Lahman  v.  Hatch,  124  Cal.  1,  56  Pac.  621.  Section  71  of  the 
act  providing  for  irrigation  districts  (Stats.  1897,  p.  534)  provides: 
' '  The  court  hearing  any  of  the  contests  herein  provided  for,  in  in- 
quiring into  the  regularity,  legality  or  correctness  of  such  proceedings, 
must  disregard  any  error,  irregularity  or  omission  which  does  not  af- 
fect the  substantial  rights  of  the  parties  to  such  action  or  proceeding." 

116  Pacific  Postal  etc.  Cable  Co.  v.  Dalton,  119  Cal.  604,  51  Pac. 
1072;  County  of  Los  Angeles  v.  Ballerino,  99  Cal.  597,  32  Pac.  581,  34 
Pac.  329  {dictum). 

117  County  of  Los  Angeles  v.  Ballerino,  99  Cal.  597,  32  Pac.  581,  34 
Pac.  329  ( dictum) . 


069  ENJOINING  TAXATION;  CALIFOKNIA.  §  384 

assessment  is  void  because  not  authorized  by  the  elec- 
tors of  a  district,  as  required  by  statute,  an  injunction 
will  issue  because  the  fact  will  not  appear  on  the  face 
of  the  tax  deed.^^^  Where,  however,  the  irregularity 
will  appear  upon  the  face  of  the  deed,  as  where  the  as- 
sessment is  levied  under  a  repealed  law,  there  is  no 
cloud  on  title,  and  no  injunction  will  issue.^** 

§  384.  Special  Assessments. — It  has  been  stated  by  the 
supreme  court  that  an  injunction  will  not  issue  to  re- 
strain the  collection  of  a  special  assessment  when  it 
does  not  appear  that  the  complainant  would  sustain 
irreparable  injury,  or  that  a  sale  would  cast  a  cloud 
upon  title  to  real  estate.^ ^^^  It  may  be  laid  down  as  a 
general  principle  that  an  injunction  will  not  be  al- 
lowed where  the  proceedings  are  void  on  their  face,  for 
in  such  a  ease  there  is  no  cloud  on  title.^^^  Hence, 
when  it  appears  on  the  face  of  the  proceedings  that 
they  are  taken  under  the  general  law  when  they 
should  be  according  to  the  provisions  of  a  city  charter, 
an  injunction  will  not  issue.^^^  Where,  however,  the 
assessment  is  void,  constitutes  a  lien  on  real  estate, 
and  the  defect  is  not  apparent  on  the  face  of  the  pro- 
ceedings, an  injunction  will  issue.  Thus,  it  has  been 
held  where  the  publication  of  the  notice  of  passage  of 
a  resolution  of  intention  was  made  in  a  newspaper  not 
designated  by  the  city  council,  that  no  jurisdiction  at- 
tached; that  the  defect  was  not  apparent  on  the  face 
of  the  proceedings;  and  that  therefore  an  injunction 
was  the  proper  remedy.^ ^* 

118  Woodruff  V.  Perry,  103  Cal.  611,  37  Pae.  526. 

119  Burr  V.  Hunt,  18  Cal.  303. 

120  Dean  v.  Davis,  51  Cal.  406. 

121  Bucknall  v.  Story,  36  Cal.  67. 

122  Byrne  v.  Drain,  127   Cal.  663,  60  Pac.  433. 

123  Chase  v.  City  Treasurer,  122  Cal,  540,  55  Pac.  414. 


8  385  EQUITABLE  EEMEDIES.  670 

Payment  or  Tender. — As  to  whether  it  is  necessary  to 
pay  the  amount  of  the  benefit  as  a  prerequisite  to  relief 
there  is  a  direct  conflict  of  authority.  The  later  de- 
cision holds  that  where  the  defect  is  such  as  to  prevent 
the  council  from  acquiring  jurisdiction  (and  it  is  gen- 
erally held  that  no  jurisdiction  attaches  unless  the  stat- 
ute is  strictly  complied  with),  no  tender  or  payment  is 
necessary.^2^  On  the  other  hand,  it  was  held  in  a  case 
five  years  earlier  that  so  long  as  a  moral  obligation  to 
pay  any  portion  exists,  a  court  of  equity  will  not  lend 
its  aid  to  prevent  a  cloud  on  title.^^^ 

§  385.  Colorado. — In  Colorado  "it  is  well  settled  that 
courts  of  equity  will  not  enjoin  the  collection  of  a  lax 
solely  on  the  ground  of  its  illegality,  or  the  threatened 
sale  of  property  to  satisfy  it.  Additional  facts  must 
be  alleged,  and  plainly  appear,  to  bring  a  case  within 
some  recognized  head  of  equity  jurisdiction.  It  must 
be  shown  that  not  only  would  the  plaintiff  be  without 
an  adequate  remedy  at  law,  but  that  the  enforcement  of 
the  tax  would  produce  irreparable  injury,  or  lead  to 
a  multiplicity  of  suits,  or  bring  a  cloud  upon  his 
title."^-*^  Thus,  an  injunction  will  not  be  granted  to 
restrain  the  collection  of  a  tax  on  personal  property 
when  the  tax  collector  is  able  to  respond  in  damages, 
for  there  is  an  adequate  remedy  at  law.^^'^ 

124  Chase  v.  City  Treasurer,  122  Cal.  540,  55  Pac.  414. 

125  Esterbrook  v.  O'Brien,  98  Cal.  671,  33  Pac.  765.  This  case  was 
cited  with  approval  in  Hellman  v.  Shoulters,  114  Cal.  136,  44  Pac. 
935,  45  Pac.  1057.  In  an  early  case,  "Weber  v.  City  of  San  Francisco, 
1  Cal.  455,  it  was  held  that  the  validity  of  the  ordinance  would  not 
be  inquired  into  after  the  completion  of  the  work. 

126  Wason  V.  Major,  10  Colo.  App.  181,  50  Pac.  741;  City  of  High- 
lands V.  Johnson,  24  Colo.  371,  51  Pae.  1004;  Duinars  v.  City  of  Den- 
ver, 16  Colo.  App.  375,  65  Pac.  580. 

127  Insurance  Co.  of  North  America  v.  Bonner,  24  Colo.  220,  49 
Pac.  366;  Id.,    7  Colo.  App.  97,  42  Pac.  681. 


671  ENJOINING    TAXATION;    COLOEADO.  §  S85 

Cloud  on  Title  and  Multiplicity  of  Suits. — Where  an 
invalid  tax  casts  a  cloud  on  title,  an  injunction  will 
issue  to  restrain  its  collection.^ ^s  r^^^  illegality,  as  a 
general  rule,  must  not  appear  on  the  face  of  the  pro- 
ceedings. Thus,  where  the  tax  is  assessed  under  an  un- 
constitutional law,  no  injunction  will  be  granted,  for 
the  illegality  is  said  to  be  apparent.^  ^^  But  where 
some  other  ground  of  equity  jurisdiction  appears,  the 
mere  fact  that  the  proceedings  are  void  on  their  face 
will  not  warrant  a  refusal  of  relief.  "While  void  pro- 
ceedings cast  no  cloud  upon  title  to  real  estate,  and  a 
single  individual,  moving  only  in  his  own  behalf,  and 
for  his  own  purposes,  to  restrain  such  proceedings,  will 
be  remitted  to  his  remedy  at  law,  yet  where  a  number 
of  persons  are  similarly  affected,  and  the  rights  of  all 
may  be  adjusted  in  one  proceeding,  a  court  of  equity 
will  assume  jurisdiction,  notwithstanding  there  is  no 
cloud  to  remove,  and  the  ground  of  its  jurisdiction  is 
the  prevention  of  a  multiplicity  of  suits."^^°  In  order 
to  be  entitled  to  an  injunction  against  an  invalid  as- 
sessment, plaintiff  must  make  his  objection  before  the 
board  of  equalization  first.^^^ 

Tender. — Where  part  of  a  tax  is  valid  and  part  in- 
valid, no  injunction  will  issue  until  the  valid  part  is 
either  tendered  or  paid.^^^     Where,  however,  the  entire 

128  Dumars  v.   City  of  Denver,  36   Colo.  App.   375,  65  Pac.  5S0. 

129  Wason  V.  Major,  10  Colo.  App,  181,  50  Pac.  741. 

130  Dumars  v.  City  of  Denver,  16  Colo.  App.  375,  65  Pac.  5S0. 
"Class  Third"  is  thus  distinctly  recognized:  See  1  Pom.  Eq.  Jur.  (oil 
ed.),  §  260,  note   (b). 

131  American  Eefrigerator  Transit  Co.  v.  Adams,  28  Colo.  119,  G3 
Pac.  410. 

132  Insurance  Co.  of  North  America  v.  Bonner,  24  Colo.  220,  49  Pac. 
366;  American  Eefrigerator  Transit  Co.  v.  Thomas,  28  Colo.  119, 
63  Pac.  410;  Wason  v.  Major,  10  Colo.  App.  181,  50  Pac.  741;  People 
V.   Henderson,   12   Colo.   379,   21   Pac.   144. 


;S  386,387  EQUITABLE   EEMEDIES.  672 

tax  fails  by  reason  of  an  illegal  assessment,  the  injunc- 
tion will  be  granted  without  a  tender.^^a 

§  386.  Special  Assessments. — An  injunction  will  issue 
to  restrain  the  collection  of  a  special  assessment  when 
there  is  a  jurisdictional  defect  in  the  proceedings. 
Thus,  when  a  majority  do  not  petition  for  the  improve- 
ment, as  required  by  statute,  the  city  council  has  no 
authority  to  order  it,  and  an  injunction  will  issue  even 
though  the  resolution  states  that  a  majority  have  peti- 
tioned.^ ^^  And  in  such  a  case  the  owners  are  not  es- 
topped by  acquiescence  because  they  make  no  objec- 
tion until  the  work  is  completed.^  ^'  A  mere  irregular- 
ity, however,  such  as  the  fact  that  the  city  engineer  has 
made  the  assessment  instead  of  the  assessor,  when  it 
is  based  upon  an  arithmetical  calculation,  is  not  suffi- 
©ient  to  warrant  an  injunction.^^* 

§  387.  Connecticut. — In  Connecticut,  it  is  held  that 
the  prevention  of  a  multiplicity  of  suits  is  no  ground 
for  enjoining  the  collection  of  a  tax,  when  each  individ- 
ual will  have  an  adequate  remedy  at  law.^^^  And  even 
a  threatened  cloud  upon  the  title  to  real  property  is  not 
recognized  as  a  ground  for  enjoining  proceedings  to 
collect  an  illegal  tax.^^^  Indeed,  it  is  laid  down  in  the 
most  sweeping  terms  that  "the  extraordinary  remedy 
by  injunction  cannot  be  invoked  to  hinder  or  interfere 

133  Dumars   v.    City   of   Denver,    16    Colo.   App.   375,   65   Pac.   580. 

134  Keese  v.  City  of  Denver,  10  Colo.  112,  15  Pac.  825. 
185   Id. 

136  Id. 

137  Sheldon  v.  Centre  School  District,  25  Conn.  224;  Dodd  v.  City 
of  Hartford,  25  Conn.  232. 

1S8  Kowland  v.  School  District,  42  Conn.  30;  Waterbury  Saving* 
Bank  r.  Lawler,  46  Conn.  243,  246. 


673  ENJOINING  TAXATION;  DELAWARE.  S  388 

with  a  collector  of  taxes  in  the  discharge  of  his  public 

duty."^3» 

§  388.  Delaware. — In  Delaware,  equity  will  not  "en- 
join the  collection  of  a  tax  alleged  to  be  illegal,  where 
there  is  an  adequate  remedy  at  law.  It  will  not  inter- 
fere by  its  preventive  process,  on  account  of  mere  ir- 
regularities, hardship,  and  injustice  in  the  assessment, 
or  errors  or  excess  in  valuation."  "The  ordinary  reme- 
dies in  the  case  of  taxes  illegally  assessed  and  levied 
are  an  action  at  law  after  a  compulsory  payment,  either 
of  trespass  against  the  collecting  officer,  or  of  assumpsit 
against  such  officer  or  the  public  corporation  to  which 
the  amount  has  been  paid."^^^ 

The  prevention  of  a  multitude  of  suits  is  not  ground 
for  enjoining  the  collection  of  a  state  tax,  where  the 
multiplicity  results  merely  from  the  fact  that  plaintiff 
is  guardian  of  a  large  number  of  estates  and  will  be 
obliged  to  maintain  a  separate  attion  at  law  for  each 
one.^^^  But  it  is  a  ground,  in  a  case  where  a  railroad, 
exempt  by  law  from  taxation,  is  threatened  with  tax 
proceedings  in  the  several  tax  districts  in  which  its 
property  lies.^'*^  Multiplicity  of  suits  in  cases  of  the 
"Third  Class,"  however,  is  not  recognized  as  a  ground 
for  equitable  interference  in  this  state.^"*^ 

In  order  to  warrant  an  injunction  against  the  col- 
lection of  a  tax  alleged  to  be  a  cloud  on  title  of  real  es- 
tate, the  proceedings  must  be  valid  on  their  face.     Ev- 

139  Waterbury  Savings  Bank  v.  Lawler,  46  Conn.  243,  246;  Arnold 
V.  Middleton,  39  Conn.  406. 

140  Philadelphia,  W.  &  B.  K.  Co.  v.  Neary,  5  Del.  Ch.  600;  Equita- 
ble Guarantee  &  Trust  Co.  v.  Donahoe   (Del.),  45  Atl.  583. 

141  Equitable  Guarantee  &  Trust  Co.  v.  Donahoe  (Del.),  45  Atl.  SS-?.. 

142  Philadelphia,  W,   &  B.  R.   Co.  v.   Neary,   5   Del.   Ch.   600. 

143  Murphy  v.  City  of  Wilmington,  6  Iloust.  108,  139,  140,  22  Am. 
6t.  Rep.  345;  see  ante,  §  361. 

Equitable  Remedies,  Vol.   T — 43 


5  389  EQUITABLE  REMEDIES.  674 

eryone  is  presumed  to  know  the  law,  and  therefore  if 
the  proceedings  themselves  show  that  they  are  defective, 
or  if  the  act  under  which  the  tax  is  levied  is  unconsti- 
tutional, the  injunction  will  be  denied. 


144 


§  389.  Florida. — In  Florida,  an  injunction  against 
collection  of  a  tax  will  be  granted  only  when  the  tax 
is  illegal,  or  is  being  illegally  collected.^^^  The  injunc- 
tion will  not  issue  merely  because  the  collector  might 
adopt  a  mode  more  equitable  and  fair.^^^ 

Collection  of  a  tax  will  be  enjoined  when  the  illegal 
proceedings  for  the  levy,  assessment  and  collection  will 
cast  a  cloud  over  the  title  to  complainant's  real  es- 
tate.^ ^"^  An  injunction,  however,  will  not  be  granted 
where  there  is  an  adequate  remedy  at  law,  and,  there- 
fore, equity  will  not  interfere  when  the  tax  is  to  be  col- 
lected out  of  personal  property  unless  it  has  some  pecu- 
liar, intrinsic  value  to  the  owner  that  cannot  be  com 
pensated  in  money.^^^ 

Tender. — The  constitution  of  Florida  provides  that 
"no  person  or  corporation  shall  be  relieved  from  the 
payment  of  any  tax  that  maj  be  illegal,  or  illegally  or 
irregularly  assessed,  until  he  or  it  shall  have  paid  such 
portion  of  his  or  its  taxes  as  may  be  legal,  and  legally 
and  regularly  assessed."^^^  In  construing  this,  the  su- 
preme court  of  Florida  has  held  that  payment  is  not  a 

144  Murphy  v.  City  of  Wilmington,  6  Houst.  108,  22  Am.  St. 
Eep.   345. 

145  Bloxhara  v.  Consumers'  etc.  R.  R.  Co.,  36  Fla.  519,  51  Am.  St. 
Eep.  44,  18  South.  444,  29  L.  E.  A.  507, 

146  Id. 

147  Pickett  V.  Russell,  42  Fla.  IIG,  634,  28  South.  764;  Smith  v. 
Longe,  20  Fla.  697. 

148  Odlin  V.  Woodruff,  31  Fla.  160,  12  South.  227;  City  of  Jack- 
sonville V.  Massey  Business  College  (Fla.),  36  South.  432;  Florida 
Packing  &  Ice  Co.  v.  Carney   (Fla.),  38  South.  602. 

149  Const.  1885,  art.  IX,  §  8. 


675  ENJOINING  TAXATION;  GEORGIA.  §§  390,391 

prerequisite  to  beginning  proceedings,  "but  that  such 
payment  must  be  made  before  the  applicant  is  relieved 
from  the  illegal  tax."^^*^ 

§  390.  Georgfia.— The  Political  Code  of  Georgia  pro- 
vides: "No  replevin  shall  lie,  nor  any  judicial  interfer- 
ence be  had,  in  any  levy  or  distress  for  taxes  under  the 
provisions  of  this  code;  but  the  party  injured  shall  be 
left  to  his  proper  remedy  in  a  court  of  law  having  ju- 
risdiction thereof."^^^  In  construing  this  section  the 
supreme  court  of  Georgia  has  held  that  "for  an  officer 
to  exact  money,  under  the  name  of  a  tax,  v^here  there 
is  no  law  to  warrant  the  exaction,  is  not  an  attempt  to 
collect  taxes,  but  an  attempt  to  collect  something  else; 
and  the  rule  which  excludes  interference  in  the  collec- 
tion of  taxes  does  not  apply."^^^  Following  this  in- 
terpretation, it  has  been  held  that  an  injunction  will 
issue  to  restrain  a  tax-collector  who  is  attempting  to 
collect  an  amount  claimed  to  be  due  for  taxes  upon 
property  which  is  not  required  by  law  to  be  returned 
for  taxation  in  the  county  in  which  he  holds  his  of- 
fice ;^^^  or  to  restrain  the  collection  of  an  unconstitu- 
tional tax.^^^  A  party  claiming  an  injunction  because 
of  the  unconstitutionality  of  the  taxing  act  or  because 
of  an  exemption,  must  make  the  invalidity  as  to  him 
clearly  and  unequivocally  appear.^^^ 

§  391.  Special  Assessments.— Where  the  statute  au- 
thorizes certain  street  work  whenever  "in  the  judgment 

150  Pickett  V.  Russell,  42  Fla.  116,  634,  28  South.  764. 

151  Pol.   Code,    §    903. 

152  Decker  et  al.  v.  McGowan,  59  Ga.  805. 

153  Penick  v.  High  Shoals  Mfg.  Co.,  113  Ga.  592,  38  S.  E.  973.  See, 
also,  Linton  v.  Lucy  Cobb  Institute,  117  Ga.  678,  45  S.  E.  53. 

.154   Wright  V.  S.  W.  R.  Co.,  64  Ga.  783. 

155  L.  B.  Price  Co.  v.  City  of  Atlanta,  105  Ga.  358,  31  S.  E.  619. 


§§  392,393  EQUITABLE   REMEDIES.    .  676 

of  the  city  council  of  said  city,  the  pavement  has  be- 
come worn  out,"  a  court  of  equity  will  not  interfere  with 
the  exercise  of  the  discretion  of  the  municipal  author- 
ities. And  the  mere  fact  that  the  assessment  levied 
accordingly  is  excessive  is  no  ground  for  an  injunction 
where  the  statute  provides  an  adequate  remedy.^ '^^ 

§  392.  Idaho — In  Idaho,  an  injunction  will  issue  to 
restrain  the  collection  of  a  tax  which  casts  a  cloud  on 
the  title  to  land.  The  rule  that  there  is  no  cloud  where 
the  proceedings  are  void  on  their  face  seems  to  have 
been  adopted.^  ^^ 

The  injunction  will  not  issue  after  the  tax  sale;  nor 
will  it  be  granted  without  notice  to  the  municipality.^^* 

§  393.  Illinois — In  General — The  grounds  of  the  jur- 
isdiction to  enjoin  the  collection  of  taxes  were  at  an 
early  date  formulated  in  a  definite  rule,  to  which  the 
courts  of  Illinois  have  consistently  adhered.  "A  court 
of  equity  will  not  entertain  a  bill  to  enjoin  the  col- 
lection of  a  tax,  except  where  the  tax  is  unauthorized 
by  law,  or  when  it  is  assessed  upon  property  which  is 
exempt  from  taxation,  or  when  property  has  been  fraud- 
ulently assessed  at  too  high  a  rate,"^^'^  or  according  to 
a  few  cases,  when  the  injunction  is  necessary  to  pre- 

156  Eegenstein  v.  City  of  Atlanta,  98  Ga.  167,  25  S.  E.  428;  Bice 
V.  Mayor    etc.  of  City  of  Macon,  117  Ga.  401,  43  S.  E.  773. 

157  Bramwell  v.  Guheen,  3  Idaho,  347,  29  Pac.  110. 

158  Wilson  V.  City  of  Boise  City,  7  Idaho,  69,  60  Pac.  84. 

159  Siegfried  v.  Eaymond,  190  111.  424,  60  N.  E.  868;  Coxe  Bros. 
V.  Salomon,  188  111.  571,  59  N.  E.  422;  White  v.  Eaymond,  188  111.  298, 
58  N.  E.  976;  Earl  v.  Eaymond,  188  111.  15,  59  N.  E.  19;  Kochersperger 
V.  Earned,  172  111.  86,  49  N.  E.  988;  Illinois  Central  E.  E.  Co.  v. 
Hodges,  113  111.  323;  Porter  v.  Eockford  etc.  E.  Co.,  76  111.  561  (596) 
(a  leading  case);  Chicago,  B.  &  Q.  E.  Co,  v.  Cole,  75  111.  591;  Mc- 
Conkey  v.  Smith,  73  111.  313;  Vieley  v.  Thompson,  44  111.  9;  Munson 
V.  Miller,  66  HI.  380;  Union  Trust  Co.  v.  Weber,  96  111.  346,  357. 


677  ENJOINING   TAXATION;    ILLINOIS.  S  394 

rent  irreparable  injury.^®**  In  Illinois,  collection  of 
taxes  on  personal  property  may  be  enjoined,  in  the 
cases  enumerated  above,  notwithstanding  the  existence 
of  the  legal  remedy  to  recover  back  the  amount  of  the 
tax  paid,  and  notwithstanding  that  the  proceedings  for 
collection  of  the  tax  may  constitute  only  a  case  of  ordi- 
nary trespass.^  ^^ 

That  the  statute  under  which  the  assessor  made  an 
analysis  of  the  assessment  is  unconstitutional  is  not  a 
ground  for  injunction,  where  the  taxes  are  authorized 
and  there  is  no  irreparable  injury  to  complainant;  a 
court  of  law  is  as  competent  as  a  court  of  equity  to  try 
the  question  of  constitutionality.^^^ 

The  court  will  not  enjoin  the  collection  of  taxes  for 
mere  irregularities  in  the  assessment,  levying,  or  col- 
lection.^ ^^ 

Where  the  tax-collector  levied  upon  property  of  one 
for  the  taxes  of  another,  and  the  collector  was  insol- 
vent, and  replevin  would  not  lie,  and  the  use  of  the 
article  levied  upon  was  indispensable  to  the  complain- 
ant's business,  an  injunction  was  held  proper.^ ^^ 

§  394.  Illegality — The  courts  of  Illinois  have  gone 
further  than  most  courts  in  restraining  the  collection 
of  taxes  alleged  to  be  illegal,  but  have  always  professed 
to  recognize  the  universal  rule  that  relief  of  that  kind 
cannot  be  granted  except  upon  some  ground  of  equity 

160  Deming  v.  James,  72  IlL  78;  Vieley  y.  Thompson,  44  111.  9. 

161  Searing  v.  Heavysides,  106  III.  85. 

162  Ayers  v.  Widmayer,  188  111.  121,  58  N.  E.  956. 

163  Chicago,  B.  &  Q.  E.  Co.  v.  Frary,  22  111.  34;  see  the  forcible 
statement  of  the  reasons  for  the  rule  in  the  opinion  of  Caton,  C.  J.; 
Huck  V.  Chicago  &  A.  E.  Co.,  86  111.  360;  Union  Trust  Co.  v.  Weber, 
96  111.  346,  351,  357. 

164  Deming  v.  James,  72  111.  78.  The  decision  appears  to  rest 
upon  the  general  ground  that  the  injury  is  irreparable. 


§  394  EQUITABLE  REMEDIES.  678 

jurisdiction.^ ^^  The  rule  is  laid  down  that  "when  the 
law  has  conferred  no  power  to  levy  a  tax,  or  in  case 
a  person  or  officer  not  authorized  by  law  to  exercise 
such  a  power,  shall  levy  a  tax,  or  when  the  proper  per- 
sons shall  make  the  levy  for  purposes  on  the  face  of 
the  levy,  not  authorized,  or  for  fraudulent  purposes,  a 
court  of  equity  may  stay  its  collection  by  injunction."^ ^^ 

If  the  tax  is  levied  for  a  lawful  purpose,  and  without 
fraud,  a  mere  erroneous  dietermi nation  as  to  the  place 
of  the  complainant's  residence  does  not  constitute  such 
illegality  as  will  be  relieved  against  in  equity.^ ^''^ 

As  to  the  stage  of  the  tax  proceedings  at  which  the 
court  may  interfere,  it  is  held  that  a  court  of  equity 
will  never  restrain  the  extension  of  a  tax  unless  it  is 
wholly  unauthorized  and  void  in  all  its  parts.  If  any 
portion  of  the  tax  is  valid,  then  the  court  will  never  in- 
terpose until  the  taxes  have  been  extended  on  the  col- 
lector's books.^^® 

The  statute  providing  that  the  township  board  of 
review  is  authorized  to  raise  complainant's  assessment 
only  after  giving  notice  in  writing,  the  collection  of 
the  increase  of  tax  based  on  an  increased  assessment 
made  without  such  notice  will  be  enjoined  on  the 
ground  that  the  assessment  is  void  as  to  the  increase, 
and  this  without  reference  to  the  fairness  or  unfairness 
of  the  valuation.^ ^^ 

165  Williams  v.  Dutton,  184  111.  608,  56  N.  E.  868. 

166  Town  of  Ottawa  v.  Walker,  21  111.  605,  610,  71  Am.  Dec.  121, 
approved  in  Knopf  v.  First  Nat.  Bank,  173  111.  331,  50  K.  E.  660. 
See,  also,  Chicago  &  M.  Electric  Ey.  Co.  v.  Vollman,  213  111.  609, 
73  N.  E.  360. 

167  Williams  v.  Dutton,  184  lU.  608,  56  N.  E.  868. 

168  Ottawa  Glass  Co.  v.  McCaleb,  81  111.  562. 

169  Huling  V.  Ehrich,  183  111.  315,  55  N.  E.  636,  and  cases  cited; 
and  see  First  Nat.  Bank  of  Shawneetown  v.  Cook,  77  111.  622;  Darling 
V.  Gunn,  50  111.  424. 


679  ENJOINING   TAXATION;   ILLINOIS.  §  395 

A  tax  levied  wholly  without  authority  of  law  may  be 
enjoined;  as  when  an  assessor,  in  assessing  a  party's 
personal  property  and  credits,  went  back  three  years, 
and  raised  the  amount  of  his  credits  for  those  years 
seven  thousand  dollars,  which  was  entered  on  the  books, 
and  assessed  against  the  party  as  for  such  prior 
years  ;^''®  or  where  the  assessor  assesses  personal  prop- 
erty against  one  who  was  not  the  owner  of  the  same, 
and  had  no  possession  or  control  over  the  same,  and  no 
interest  therein,  and  the  boards  of  review  refuse  to  give 
relief  ;^'^^  or  where  a  county  board  of  review,  in  equaliz- 
ing the  valuation  between  the  different  towns,  makes  a 
material  increase  in  the  aggregate  amount  of  all  the 
towns,  beyond  what  is  actually  necessary  or  inci- 
dental,^'^^  or  where  taxes  for  several  years  previous  are 
extended  upon  the  assessment  of  the  current  year,  in- 
stead of  upon  the  assessments  for  the  several  years  for 
which  the  levies  were  made,  in  violation  of  the  constitu- 
tional provision  that  all  taxes  shall  be  levied  by  valua- 
tion.1'3 

§  395.  Illegal  Municipal  Taxes — Where  bonds  have 
been  issued  by  a  township  to  a  railroad  companj',  un- 
der a  vote  at  an  election  held  without  authority  of  law, 
both  state  and  local  officers  may  be  enjoined  from  at: 
tempting  to  cause  a  tax  to  be  levied  for  the  payment 
of  the  principal  or  interest  of  such  bonds.^'^* 

A  municipality  may  be  enjoined  at  the  suit  of  a  tax- 
payer, from  the  levy  and  collection  of  a  tax  for  the  f)ur- 

170  Allwood  V.  Cowen,  111  111.  431.  See,  also,  Cox  v.  Hawkins,  199 
111.  68,  64  N.  E.  1093  (illegal  increase  of  assessment  on  personal  prop- 
erty enjoined). 

171  Searing  v.  Heavysides,   106   111.   85, 

172  Kimball  v.  Merchants'  S.  L.  &  T.  Co.,  89  111.  611. 

173  Town  of  Lebanon  v.  Ohio  &  M.  Ey.  Co.,  77  111.  539. 

174  Eutz   V.   Calhoun,   100   111.   392. 


§  396  EQUITABLE  REMEDIES.  680 

pose  of  paying  an  indebtedness  incurred  in  excess  of 
the  constitutional  limit  of  five  per  cent  of  the  valuation 
of  taxable  property  ;^'^^  or  for  the  payment  of  indebted- 
ness incurred  in  the  purchase  of  land  for  a  private  pur- 
pose ;^''^  or  for  the  payment  of  bounties  to  volunteer 
soldiers,  etc.,  where  the  terms  of  the  statute  authorizing 
a  special  tax  for  such  a  purpose  have  not  been  complied 
with  in  essential  particulars,^''  or  the  ta^  is  unauthor- 
ized by  statute.^ '^ 

When  a  bill  is  filed  to  stay  the  collection  of  a  tax 
levied  to  pay  county  orders  issued  for  bounties,  a  por- 
tion of  which  are  authorized,  and  a  portion  unauthor- 
ized by  law,  the  court  should  ascertain  the  amount  the 
unauthorized  bear  to  those  authorized,  and  reduce  the 
levy  by  the  proportion  the  former  bears  to  the  latter, 
and  require  the  remainder  to  be  collected  and  applied 
to  the  payment  of  those  legally  issued.^'®  But  the  gen- 
eral rule  prevails  in  Illinois,  that  when  a  bill  is  filed 
to  enjoin  the  collection  of  taxes,  on  the  ground  that 
they  are  in  part  illegal,  the  bill  must  show  to  what  ex- 
tent they  are,  in  order  that  the  court  may  enjoin  only 
the  illegal  portion,  or  must  show  that  they  are  so  levied 
that  it  is  impossible  to  discriminate  between  the  legal 
and  illegal  portions.^ ^® 

§  396.  Illegal  Taxes;  Parties  Plaintiff.— It  is  held  that 
the  illegal  tax,  as  an  entirety,  may  be  enjoined  either 
where  the  suit  is  by  a  number  of  tax-payers  on  behalf 

175  Howell  V.   City   of  Peoria,   90   111.   104;    City   of   Springfield   v. 
Edwards,  84  111,  626;  Dollabon  v.  Whittaker,  187  lU.  84,  58  N.  E.  301. 

176  Sherlock   v.   Village   of  Winnetka,   59   111.   389,  68  111.   530. 

177  Vieley  v.  Thompson,  44  111.  9. 

178  Drake  v.  Phillips,  40  111.  388. 

179  Briscoe  v.  Allison,  43  111.  291. 

180  Taylor  v.  Thompson,  42  111.  9. 


681  ENJOINING    TAXATION;    ILLINOIS.  §  iJy. 

of  themselves  and  others  similarly  situated,  or  by  one 
suing  on  behalf  of  all  others,  or  even  where  the  suit  is 
by  one  suing  for  himself  alone,  where  the  effect  would 
be  to  settle  the  rights  of  all;^^^  and  this  for  the  purpose 
of  avoiding  a  multiplicity  of  actions  by  different  tax- 
payers, although  there  is  no  privity  or  legal  relation  of 
common  property  or  common  right  as  between  the  tax- 
payers, and  the  only  common  interest  between  them  is 
in  the  question  of  the  legality  of  the  tax,  and  in  the 
fact  that  all  are  injured  by  the  same  wrongful  and 
illegal  act  of  levying  the  tax.^^^  -^^^  ^^j^g  right  of  a 
single  tax-payer  should  be  limited  to  himself,  and  he 
should  not  be  permitted  to  enjoin  the  entire  tax,  in  a 
case  where  it  could  not  be  presumed  that  the  other 
tax-payers  desired  to  stop  the  administration  of  the 
government,  and  where  such  disastrous  consequence 
would  surely  result.^^^ 

§  397.  Exempt  Property .^A  court  of  equity  will  grant 
relief,  by  way  of  injunction,  against  the  imposition  of  a 
tax  upon  property  exempt  from  taxation,^ ^*  In  cases 
where  a  tax  is  assessed  upon  property,  some  of  which 
is  exempt,   equity  will   enjoin   the   collection   of   that 

181  Knopf  V.  First  Nat.  Bank,  173  111.  331,  50  N.  E.  660,  reviewing 
the  Illinois  cases.  In  this  ease  the  suit  was  by  a  single  tax-payer, 
"but  the  necessary  effect  is  to  determine  the  right  of  every  tax-payer 
in  the  district,  and  it  would  be  an  irrelevant  distinction  that  the  bill 
does  not,  in  set  phrase,  purport  to  be  on  behalf  of  all  others  having 
individual  and  separate  interests  of  the  same  character."  See  Ger- 
man Alliance  Ins.  Co.  v.  Van  Cleve,  191  111.  410,  61  N.  E.  94  (action 
by  forty-two  complainants). 

182  Knopf  V.  First  Nat.  Bank,  173  111.  331,  50  N.  E.'660. 

183  Board  of  Supervisors  of  Du  Page  County  v.  Jenks,  65  111.  275, 
as  explained  in  Knopf  v.  First  Nat.  Bank,  173  111.  331,  50  N.  E.  660. 

184  Siegfried  v.  Kaymond,  190  111.  424,  60  N,  E.  868,  and  cases  cited; 
Eosehill  Cemetery  CJo.  v.  Kern,  147  111.  483,  35  N.  E.  240;  Illinoia 
Central  E.  E.  Co.  v.  Hodges,  113  111.  323;  Huck  v.  Chicago  &  A.  E, 
Co.,  86  111.  360. 


§  398  EQUITABLE  REMEDIES.  682 

part  of  the  tax  whicli  is  assessed  upon  the  exempt  prop- 
erty, if  it  is  possible  to  ascertain  what  part  of  the  tax 
assessed  upon  the  whole  property  is  assessed  upon  the 
property  which  is  exempt  from  taxation  ;^^^  but  the 
complainant  must  show  that  the  property  claimed  to  be 
exempt  was  included  in  the  assessment.^  ^^ 

The  owner  has  a  right  to  assume  that  the  exemption 
will  be  respected,  and  is  not  required  to  take  notice  of 
its  illegal  assessment  and  valuation,  nor  to  appear  be- 
fore the  local  tribunals  in  that  regard.^ ^'^  He  must, 
however,  be  prepared  to  maintain  his  claimed  right  of 
exemption  by  clear  and  satisfactory  proof. ^^^  If  he  has 
elected  to  pursue  his  statutory  remedy  by  application 
to  the  board  of  review,  and  their  decision  is  adA^erse, 
his  further  remedy  is  by  appeal  from  that  decision,  not 
by  bill  in  chancery  to  enjoin  the  collection  of  the  tax.^®^ 

§  398.  Fraudulent  Increase  of  Assessment. — The  com- 
plainant should  first  seek  a  hearing  from  the  board  of 
review.  If  that  board  refuses  a  hearing,  or  fails  to 
consider  the  objections,  mandamus  to  compel  it  to  per- 
form its  duty  in  that  respect  will  lie,  is  an  adequate 
remedy,  and  should  be  resorted  to.^^*^     "The  valuation 

185  Siegfried  v.  Raymond,  190  111.  424,  60  N.  E.  868,  and  cases 
eitcd.  The  court  will  not  enjoin  the  collection  of  the  whole  tax  be- 
cause in  determining  the  valuation  of  an  aggregate  property  exempt 
pjoperty  muy  have  been  included  as  a  factor;  it  is  incumbent  on  the 
plaintiff  to  show  that  it  is  injured,  and  to  what  extent,  by  the  fact 
of  such  inclusion,  as  the  exempt  property  may  be  of  no  value,  or  of 
a  purely  nominal  value:  Huck  v.  Chicago  &  A.  R.  Co.,  86  lU.  360. 

186  Siegfried  v.  Raymond,  190  111.  424,  60  N.  E.  868. 

187  Rosehill  Cemetery  Co.  v.  Kern,  147  111.  483,  35  N.  E.  240;  lUi- 
Bois  Central  R.  R.  Co.  v.  Hodges,  113  111.  323. 

188  Rosehill  Cemetery  Co.  v.  Kern,  147  111.  483,  35  N.  E.  240. 

189  Preston  v.  Johnson,  104  111.  625. 

190  Standard  Oil  Co.  v.  Magee,  191  111.  84,  60  N.  E.  802,  and  cases 
cited;  Coxe  Bros.  v.  Salomon,  188  111.  571,  59  N.  E.  422  (postponement 
«f  hearing  by  board  until  too  late  for  mandamus,  not  a  ground  for 


683  ENJOINI^'G    TAXATlOiN;    ILLINOIS.  §  SUS 

is  not  [like  an  assessment  of  exempt  property]  an  act 
without  jurisdiction  or  authority,  and,  if  it  is  excessive, 
the  law  intends  that  application  shall  be  made  to  the 
board Fraud  is  a  familiar  ground  of  equity  jur- 
isdiction, and,  if  an  assessment  is  fraudulent,  equity 
should  relieve  against  it,  where  the  tax-payer  has  been 
diligent  in  seeking  the  remedy  which  the  statute  affords. 
In  matters  of  revenue  it  is  important  that  all  questions 
should  be  speedily  settled,  and  the  tax-payer  should 
first  seek  the  remedy  given  by  the  statute,  which*  it  is 
presumed  will  be  suflQcient,  If  he  fails  to  do  so,  it  is 
his  own  neglect  or  folly."^^^ 

When  the  board  of  review  have  jurisdiction  of  the 
person  and  of  the  subject-matter,  the  court  has  no 
power  to  restrain  the  collection  of  the  tax,  in  the  ab- 
sence of  fraud  either  in  the  procedure  of  the  board  or 
in  the  conclusion  reached  by  them.^^^  Fraudulent  con- 
duct on  the  part  of  the  assessor  is  purged  by  the  hear- 
ing, review,  and  action  of  the  board  of  review,  if  the 
latter  is  not  charged  with  having  itself  been  guilty  of 
fraud.^^* 

The  determination  of  the  value  to  be  fixed  on  prop- 
erty liable  to  be  assessed  is  not,  in  the  absence  of  fraud, 
subject  to  the  supervision  of  the  judicial  department 

injunction  afterwards) ;  White  v.  Eayrnond,  188  111.  298,  58  N,  E.  976, 
and  cases  cited;  Kinley  Mfg.  Co.  v.  Kochersperger,  174  111.  379,  51 
N.  E.  648;  New  Haven  Clock  Co.  v.  Kochersperger,  175  111.  383,  51 
N.  E.  629  (an  important  case);  Kochersperger  v.  Lamed,  172  111.  86, 
49  N.  E.  988;  Beidler  v.  Kochersperger,  171  111.  563,  49  N.  E.  716; 
Camp  V.  Simpson,  118  111.  224,  8  N.  E.  308;  Felsenthal  v.  Johnson,  104 
IlL  21. 

191  New  Haven  Clock  Co.  v.  Kochersperger,  175  111.  383,  51  N.  E. 
629. 

192  Earl  v.  Raymond,  188  111.  15,  59  N.  E.  19;  American  Express 
Co.  V.  Eaymond,  189  111.  232,  59  N.  E.  528;  Sterling  Gas  Co.  v.  Higby, 
134  111.  557,  25  N.  E.  660. 

193  Burton  Stock-car  Co.  v.  Traeger,  187  111.  9,  58  N,  E.  418,  and 
eases  cited. 


S  398  EQUITABLE  EEMEDIES.  684 

of  the  state,  under  a  provision  of  the  constitution  of 
Illinois.^'*  Where,  however,  the  valuation  is  so  grossly 
out  of  the  way  as  to  show  that  the  assessor  could  not 
have  been  honest  in  his  valuation,  and  must  have  known 
of  its  excessive  character,  such  valuation  will  be  ac- 
cepted as  proof  of  a  fraud  upon  his  part  against  the 
tax-payer,  and  in  such  case  a  court  of  equity  will  grant 
relief;  but  the  excessive  valuation  by  itself  does  not 
establish  fraud,  the  question  depending  largely  upon 
the  attending  circumstances.^  ^^  Thus,  where  the  prop- 
erty of  the  complainant  was  assessed  at  two  and  a  half 
times  its  cash  value,  as  part  of  a  general  plan  of  dis- 
honest spoliation,  by  which  complainant  and  others 
were  selected  as  victims  from  whom  bribes  might  be 
obtained,  the  assessment  should  be  set  aside,  unless  the 
complainant  is  barred  of  relief  in  equity  by  submitting 
to  be  sent  away  from  the  statutory  board  of  review 
without  a  hearing  and  decision.^ ^^  And  where  the  as- 
sessor, after  he  had  accepted  from  the  owner  a  list  and 
valuation  of  his  property,  arbitrarily  and  without  no- 
tice materially  increased  the  valuation,  and  this  in- 
crease did  not  come  to  the  owner's  knowledge  until 
after  the  time  allowed  for  legal  redress,  an  injunction 

194  Burton  Stoek-Car  Co.  v.  Traeger,  187  111.  9,  58  N.  E.  418,  and 
cases  cited;  New  Haven  Clock  Co.  v.  Kochersperger,  175  111.  383,  51 
N.  E.  629,  and  cases  cited  ("value  is  largely  a  matter  of  opinion, 
and  the  opinion  of  these  officers,  when  honestly  exercised  and  ap- 
plied upon  a  basis  authorized  by  the  law,  cannot  be  reviewed  or  re- 
vised by  the  courts");  Kochersperger  v.  Lamed,  172  111.  86,  49  N.  E. 
988;  Pacific  Hotel  Co.  v.  Lieb,  83  HI.  602  (bill  must  state  facts  dis- 
tinctly showing  fraud);  Porter  v.  Eockford  etc.  K,  Co.,  76  111.  561, 
595;  Chicago,  B.  &  Q.  E.  E.  Co.  v.  Cole,  75  111.  591;  Ottawa  Glove  Co. 
V.  McCaleb,  81  111.  556;  Union  Trust  Co.  v.  Weber,  96  111.  346,  352. 

195  Burton  Stock-Car  Co.  v.  Traeger,  187  111.  9,  58  N.  E.  418;  New 
Haven  Clock  Co.  v.  Kochersperger,  175  111.  383,  51  N.  E.  629. 

196  New  Haven  Clock  Co.  v.  Kochersperger,  175  111.  383,  51  N.  E. 
629. 


685  ENJOINING    TAXATION;    ILLINOIS.  §  399 

was  proper.^ ®^  Where  the  state  board  of  equalization, 
in  assessing  the  projjerty  and  franchises  of  a  railroad, 
undertakes  to  fix  valuations  through  prejudice  or  a 
reckless  disregard  of  duty,  in  opposition  to  what  must 
necessarily  be  the  judgment  of  all  persons  of  reflection, 
it  is  the  duty  of  the  courts  to  interfere.^  ^® 

.  §  399.  Special  or  Local  Assessments. — The  question  of  the 
necessity  of  a  local  improvement  is,  by  the  law,  com- 
mitted to  the  city  council,  and  courts  have  no  right  to 
interfere  to  prevent  such  improvement  except  in  cases 
where  it  clearly  appears  that  such  discretion  has  been 
abused.  The  ground  on  which  the  courts  interfere  is 
that  the  ordinance  is  so  unreasonable,  unjust,  and  op- 
pressive, as  to  render  it  void.^^^  Courts  of  equity  will 
interfere  to  restrain  any  substantial  departure  from  the 
terms  of  an  ordinance  in  the  performance  of  work 
thereunder,  if  applied  to  in  apt  time,  while  the  work  is 
in  progress.^^'^  If  the  work,  as  performed  by  the  con- 
tractor, is  accepted  by  the  city,  and  the  contractor 
settled  with  and  paid,  the  remedy  to  be  invoked  by  the 
property-holder,  if  the  work  is  not  done  in  substantial 
compliance  with  the  provisions  of  the  ordinance,  is  the 
writ  of  mandamus  to  compel  the  city  authorities  to 
complete  the  work  as  contemplated  by  the  ordinance. 
An  injunction  will  not  be  awarded  in  such  case  to  re- 
strain the  collection  of  a  special  assessment.^*^^ 

197  First  Nat.  Bank  of  Shawneetown  v.  Cook,  77  III.  622;  Mc- 
Conkey  v.  Smith,  73  IlL  313;   Cleghorn  v.  Postlewaite,  43  111.  428. 

198  Chicago,  B.  &  Q.  E.  Co.  v.  Cole,  75  HI.  591. 

199  Field  V.  Village  of  Western  Springs,  181  111,  186,  54  N.  E.  929 
(adequate  remedy  at  law) ;  Walker  v.  Village  of  Morgan  Park,  175 
111.   570,  51   N.  E.   636. 

200  A  deviation  causing  no  injury  to  complainant  is  not  ground 
for  enjoining  the  collection  of  the  assessment:  Rossiter  v.  City  of 
Lake  Forest,  151  111.  489,  38  N.  E.  359. 

201  Canister  v.  Kochersperger,  168  111.  334,  48  N.  E.  156;  Heinroth 


§  400  EQUITABLE  EEMEDIES.  686 

§  400.  Indiana. — An  injunction  will  not  be  granted 
at  the  suit  of  a  tax-payer  because  of  irregularities  in 
the  proceedings  of  the  county  officers,  where  there  was 
autliority  to  levy  the  tax.^"^  it  is  only  in  cases  where 
the  record  shows  a  clear  invasion  of  the  rights  of  the 
citizens  by  void  acts,  and  they  have  no  remedy  by  the 
ordinary  processes  of  the  law,  that  the  court  will  in- 
terfere by  injunction.2^^ 

A  court  of  equity  will  not  interfere  to  protect  a  per- 
son from  the  payment  of  a  just  tax,-°^  nor  will  it  give 
relief  where  he  is  not  prejudiced  in  a  substantial 
right.205 

There  can  be  no  injunction  when  the  acts  alleged 
amount  to  no  more  than  a  simple  threat  to  commit  a 
trespass ;  as  where  the  complaint  does  not  aver  that  the 
tax  duplicate  is  in  the  hands  of  the  treasurer,  without 
which,  having  no  power  to  levy,  the  act  of  leying  would 
be  a  mere  trespass.^ "^^^ 

Where  an  attempt  to  annex  territory  to  a  city  is  in- 

V.  Kochersperger,  173  111.  205,  50  N.  E,  171;  Smith  v.  Kochersperger, 
180  111.   527,   54  N.   E.   614. 

202  Eicketts  v.  Spraker,  77  Ind.  371;  Yocum  v.  First  Nat.  Bank 
(Ind.),  38  N.  E.  599;  Hendricks  v.  Gilchrist,  76  Ind.  369;  City  of 
Delphi  V.  Bowen,  61  Ind.  33;  Center  &  W.  Gravel  Eoad  Co,  v.  Black, 
32  Ind.  468;  Cleveland,  C.  C.  &  St.  L,  Ey.  Co.  v.  Town  of  Waynetown, 
153  Ind.  550,  55  N.  E.  451;  Crowder  v.  Eiggs,  153  Ind.  158,  53  N.  E. 
1019;  Morton  C.  Hunter  Stone  Co.  v.  Woodard,  152  Ind.  474,  53  N.  E. 
947;  McCrory  v.  O'Keefe,  162  Ind.  534,  70  N.  E.  812. 

203  Yocum  V.  First  Nat.  Bank  (Ind.),  38  N.  E.  599.  See  notes  be- 
low for  instances  of  illegal  taxes  enjoined;  also.  Knight  v.  Turnpike 
Co.,  45  Ind.  134  (illegal  tax  for  benefit  of  a  turnpike  company  which 
had  not  been  incorporated);  Toledo  etc.  E.  Co.  v.  City  of  Lafayette, 
22  Ind.   262. 

204  Eeynolds  v.  Bowen,  138  Ind.  434,  36  N.  E.  756,  37  N.  E.  962. 

205  Miller  v.  Vollmer,  153  Ind.  26,  53  N.  E.  949. 

206  Anthony  v.  Sturgis,  86  Ind.  479.  See,  also.  Smith  v.  Smith,  159 
Ind.  3S8,  65  N.  E.  183,  where  suit  before  threat  to  levy  was  held 
premature. 


687  ENJOINING  TAXATION;   INDIANA.  S  4 00 

valid,  a  municipal  tax  on  property  situated  in  such  dis- 
trict may  be  enjoined.^"^ 

Where  a  person  resides  in  a  town  in  Indiana,  and  his 
personal  property  belongs  elsewhere,  such  town  has  no 
authority  to  assess  taxes  upon  such  property,  and  the 
collection  of  the  same  will  be  enjoined. ^''^ 

The  sale  of  lands,  for  the  payment  of  delinquent 
taxes  thereon,  where  the  owner  has  leviable  personal 
property  within  the  county  suificient  to  pay  the  taxes 
assessed  against  him,  may  be  enjoined.^"** 

A  tax  unauthorized  by  law,  against  the  capital  stock 
of  a  foreign  corporation,  may  be  enjoined.-^^ 

A  reason  for  the  free  exercise  of  the  remedy  of  in- 
junction to  restrain  the  collection  of  an  illegal  and  void 
tax,  regardless  of  whether  the  case  presents  some  pc^ 
culiar  ground  for  equity  jurisdiction,  as  the  prevention 
of  a  multiplicity  of  suits,  or  the  removal  of  a  cloud 
upon  title,  or  the  inadequacy  of  an  action  at  law,  is 
found  in  the  abolishment  of  the  distinctions  between 
actions  at  law  and  suits  in  equity.^^^ 

Courts  will  not  give  relief  against  erroneous  assess- 
ments by  the  state  board  of  equalization,  except  on  the 
ground  of  fraud.^^^ 

Where  the  statute  gives  persons  aggrieved  by  the  act« 
of  the  board  of  county  commissioners  the  right  to  ap- 
peal, an  injunction  will  not  be  granted  to  prevent  the 

207  City  of  Logansport  v.  La  Rose,  99  Ind.  117;  Windman  v.  City 
of  Vincennes,  58  Ind.  480;  City  of  Peru  v.  Bearss,  55  Ind.  576. 

208  Eversole  v.  Cook,  92  Ind.  222;  and  see  Luke  v.  Sheridan,  26 
Ind.  App.  529,  60  N.  E.  359;  Stephens  v.  Smith,  30  Ind.  120,  65  N.  E- 
546. 

209  Abbott  V.  Edgerton,  53  Ind.  196. 

210  Eiley  v.  Western  Union  Tel.  Co.,  47  Ind.  511. 

211  City  of  Delphi   v.  Boweii,  61  Ind.  29,  37. 

212  Cleveland,  C.  C.  &  St.  L.  E.  Co.  v.  Backus,  133  Ind.  513,  33  N. 
E.  421,  18  L.  R.  A.  729. 


S  401  EQUITABLE  REMEDIES.  688 

collection  of  a  tax  levied  by  such  board  ;2^^  this  has  been 
frequently  held  of  acts  of  such  boards  in  passing  upon 
a  petition  for  county  aid  in  the  construction  of  rail- 
roads.214  But  when  a  tax  in  aid  of  railroads  is  levied 
in  excess  of  the  amount  authorized  by  statute,  the  col- 
lection of  the  excess  may  be  enjoined  by  one  who  has 
paid  the  part  of  the  tax  legally  due.^^^ 

The  right  to  enjoin  an  illegal  tax  may  be  lost  by 
laches.^^* 

§  401.  Tender  of  Legal  Tax — ^While  injunction  is  the 
proper  remedy  against  the  collection  of  taxes  where  the 
assessment  is  wholly  void,^^'^  yet  the  burden  is  upon  the 
plaintiff  to  allege  and  prove  facts  necessary  to  show 
that  the  whole  of  the  property  in  question  was  not  sub- 
ject to  assessment  for  taxation.^^^  If  any  of  the  taxes 
against  which   the  injunction   is  sought  were  legally 

213  Jones  V.  Cullen,  142  lud.  335,  40  N.  E.  124;  Senour  v.  Matchett, 
140  Ind.  636,  40  N.  E.  122;  Pittsburgh,  C.  C.  &  St.  L,  R.  Co.  v.  Har- 
den, 137  Ind.  486,  37  N.  E.  324;  otherwise,  where  the  order  levying 
a  special  tax  is  an  administrative  one,  from  which  there  is  no  appeal: 
Board  of  Commissioners  of  Owens  Co.  v.  Spangler,  159  Ind.  575,  65 
N.  E.  743. 

214  See  cases  in  last  note;  Faris  v.  Reynolds,  70  Ind.  359;  s.  c. 
svb  noin.  Reynolds  v.  Faris,  80  Ind.  14;  Board  of  Commissioners  v. 
Hall,  70  Ind.  469;  Goddard  v.  Stockman,  74  Ind.  400;  Hill  v.  Probst, 
120  Ind.  528,  22  N.  E.  664;  Bell  v,  Maish,  137  Ind.  226,  36  N.  E.  358, 
1118. 

215  Miles  V.  Ray,  100  Ind.  166. 

216  Jones  V.  Cullen,  142  Ind.  335,  40  N.  E.  124;  Vickery  v.  Blair, 
134  Ind.  554,  32  N.  E.  880;  Montgomery  v.  Wasem,  116.  Ind.  343,  15 
N.  E.  795,  19  N.  E.  184  (drainage  assessment). 

217  Buck  V.  Miller,  147  Ind.  586,  62  Am.  St.  Rep.  436,  45  N.  E.  647, 
47  N.  E.  8,  37  L.  R.  A.  384;  Senour  v.  Ruth,  140  Ind.  318,  39  N.  E. 
946;  Yocum  v.  First  Nat.  Bank,  144  Ind.  272,  43  N.  E.  231,  and  cases 
cited;  Hobbs  v.  Board  of  Commissioners,  103  Ind.  575,  3  N.  E.  263; 
and   notes  supra. 

218  Buck  V.  Miller,  supra;  Saint  v.  Welsh,  141  Ind.  382,  40  N.  E. 
003. 


689  ENJOINING   TAXATION;   INDIANA.  {  402 

assessed,  then,  in  the  absence  of  a  showing  of  payment 
or  tender,  no  relief  can  be  granted.^^®  The  tender  must 
be  kept  good  by  a  payment  into  court.^^*' 

Where  the  complaint  is  not  to  enjoin  the  collection  of 
taxes,  part  of  which  are  legal  and  part  illegal,  but  to 
set  aside  a  particular  order  alleged  to  be  void,  whereby 
a  specific  sum  was  illegally  added  to  the  assessed  value 
of  the  plaintiff's  property,  the  averment  of  payment  or 
tender  of  payment  of  the  legal  taxes  need  not  be 
madef^^  so,  where  plaintiff  seeks  to  prevent  the  levy 
of  an  assessment  upon  property  not  subject  to  taxa- 
tion.^2^ 

§  402.  Special  Assessments. — An  injunction  will  issue 
to  restrain  the  collection  of  a  special  assessment  by  a 
municipal  body  in  cases  where,  through  some  defect 
in  the  proceedings  or  otherwise,  there  is  a  want  of  jur- 
isdiction to  make  the  levy,  or  the  assessment  is  abso- 
lutely void.^^^  Thus,  it  is  proper  where  an  assessment 
is  levied  for  the  purpose  of  improving  a  public  market 

219  Buck  V.  Miller,  supra;  Shepardson  v.  Gillette,  133  Ind.  125,  31 
N.  E.  788;  Bundy  v.  Summerland,  142  Ind.  92,  41  N.  E.  322;  Smith 
V.  Union  County  Nat.  Bank,  131  Ind.  201,  30  N.  E.  948;  Smith  v. 
Eude  Bros.  Mfg.  Co.,  131  Ind.  150,  30  N.  E.  947;  Hyland  v.  Central 
I.  &  S.  Co.,  129  Ind.  68,  28  N.  E.  308,  13  L.  E.  A.  515;  City  of  Logans- 
port  V.  McConnell,  121  Ind.  419,  23  N.  E.  264;  Montgomery  v.  Was- 
Bem,  116  Ind.  343,  15  N.  E.  795,  19  N.  E.  184  (drainage  assessment); 
Board  of  Commissioners  v.  Dailey,  115  Ind.  360,  17  N.  E.  619;  Mor- 
rison V.  Jacoby,  114  Ind.  84,  14  N.  E.  546,  15  N.  E.  806  (a  lead- 
ing case);  Kicketts  v.  Spraker,  77  Ind.  371;  Mesker  v.  Koch,  76 
Ind.  68;  City  of  Delphi  v.  Bowen,  61  Ind.  33. 

220  Bundy  v.  Summerland,  142  Ind.  92,  41  N.  E.  322;  Hewett  v.  Fen- 
Btamaker,  128  Ind.  315,  27  N.  E.  621;  City  of  Logansport  v.  Case, 
124  Ind.  254,  24  N.  E.  88  (enjoining  execution  of  tax  deed);  Morrison 
V.  Jacoby,  114  Ind.  84,  14  N.  E.  346,  15  N.  E.  806. 

221  Yoeum  v.  First  Nat.  Bank,  144  Ind.  272,  43  N.  E.  231. 

222  Hyland  v.  Brazil  Block  Coal  Co.,  128  Ind.  335,  26  N.  E.  672. 

223  Studabaker  v.  Studabaker,  152  Ind.  89,  51  N.  E.  933;  De  Fuj 
T.  City  of  Wabash,  133  Ind.  336,  32  N.  E.  1016. 

Equitable  Eeraedies,  Vol.  1  —  44 


^  402  EQUITABLE  REMEDIES.  690 

altliongh  tlio  statute  autliorizcs  such  assossmonts  only 
for  streets  and  liigbways  ;--^  or  where  the  engineer  im- 
properly assesses  property  not  abutting  on  the  street 
improved;"-^  or  where  the  preliminary  estimate  which 
is  a  requisite  of  jurisdiction  is  omitted;-^*'  or  where  the 
work  is  of  absolutely  no  benefit  to  plaintiff's  land  ;-^'^  or 
where  the  municipal  body  intends  to  assess  the  total 
cost,  irrespective  of  benefits,  against  the  abutting 
owner.^^^ 

Where  the  local  board  has  jurisdiction  of  the  general 
subject,  the  assessment  cannot  be  collaterally  attacked 
by  injunction. 22^  An  injunction  will  not  be  granted 
because  of  mere  irregailarities  in  the  proceedings  which 
do  not  deprive  the  assessing  body  of  jurisdiction  or 
make  the  assessment  void.^^^  Thus,  it  will  not  be 
granted  because  the  boards  of  commissioners  of  two 
counties  sat  separately  and  not  conjointly,  nor  because 
viewers  obtained  an  extension  of  time  in  which  to  make 
their  report  ;-^^  nor  because  the  work  is  not  completed 
according  to  plans  and  specifications.^^- 

Equitable  relief  will  not  be  granted  when  there  is  an 
adequate  remedy  at  law.  Thus,  an  injunction  will  not 
issue  because  an  assessment  will  be  greater  than  the 
actual  benefits,  when  the  statute  provides  an  adequate 
remedy  by  hearing  before  a  special  tribunal,^^^  nor  be- 

224  City  of  Fort  Wayne  v.  Shoaf,  106  Ind.  66,  5  N.  E.  403. 

225  City  of  Terre  Haute  v.  Mack,  139  Ind.  99,  38  N.  K  468. 

226  Goring  v.  McTaggart,   92   Ind.   200. 

227  Millikan  v.  Wool,  133  Ind.  51,  32  N.  E.  828. 

228  McKee  v.  Town  of  Pendleton,  154  Ind.  6o2,  57  N.  E.  532. 

229  Tucker  v.  Sellers,  130  Ind.  514,  30  N.  E.  531. 

230  Florer  v.  McAfee,  135  Ind.  540,  35  N.  E.  277. 

231  Sarber  v.  Eankin,  145  Ind.  236,  56  N.  E.  220. 

232  Studabaker  v.  Studabaker,  152  Ind.  89,  51  N.  E.  933;  Muncey 
V.  Joest,  74  Ind.  409. 

233  Taylor  v.  City  of  Crawfordsville,  15o  Ind.  403,  58  N.  K  490j  Mc- 
Kee V.  Town  of  Pendleton,  162  Ind.  667,  69  N.  E.  997. 


691  ENJOINING  TAXATION;   IOWA,  §  403 

cause  the  requisite  petition  with  the  signatures  of  the 
owners  of  a  majority  of  the  frontage  has  not  been  filed 
when  no  appeal  has  been  taken  as  provided  by  stat- 
ute.234  jjj  g^(>]j  a  case  it  is  held  that  the  fact  that  others 
have  appealed  and  have  succeeded  in  having  the  assess- 
ment declared  void  will  not  avail.  Likewise,  an  in- 
junction will  not  issue  against  the  collection  of  an 
amount  spent  for  drainage  purposes  upon  the  ground 
that  the  requisite  petition  was  not  filed,  for  the  statute 
provides  an  adequate  remedy  in  all  cases  where  the 
preliminary  notice  has  been  given.^^^  And  the  relief 
will  of  course  be  denied  when  the  owner  has  unsuccess- 
fully prosecuted  his  legal  remedy.^^^ 

A  landowner  who  stands  by  in  silence,  with  full 
knowledge,  and  allows  the  work  to  be  completed,  is 
estopped  by  acquiescence  from  attacking  the  proceed- 
ings in  a  collateral  action  for  an  injunction.^^'^ 

Where  part  of  an  assessment  is  valid  and  part  in- 
valid, a  tender  of  the  valid  part  is  a  prerequisite  to  an 
injunction  against  the  invalid  part.^^* 

§  403.  Iowa — In  Iowa,  an  injunction  will  issue 
against  the  collection  of  a  tax  which  is  illegal,  and  not 
merely  irregular.-^^  Thus,  an  injunction  will  be  granted 
to  restrain  the  collection  of  an  increase  made  by  a 
county    board    of    equalization    without    authority.^*** 

234  Cason  V.  Harrison,  135  Ind.  330,  35  N.  E.  268. 

235  Zimmerman  v.  Savage,  145  Ind.  124,  44  N.  E.  252. 

236  Du  Puy  V.  City  of  Wabash,  133  Ind.  336,  32  N.  E.  1016. 

237  Montgomery  v.  Wasem,  116  Ind.  343,  15  N.  E.  795,  19  N.  E. 
184;  Muncey  v.  Joest,  74  Ind.  409. 

238  Studabaker  v.  Studabaker,  152  Ind.  89,  51  N.  E.  933;  Mont- 
gomery V.  Wasem,  116  Ind.  343,  15  N.  E,  795,  19  N.  E.  184;  Elorer  v. 
McAfee,  135  Ind.  540,  35  N.  E.  277. 

239  Montis  V.  McQuiston,  107  Iowa,  651,  78  N.  W.  704;  Chicago, 
M.  &  St.  P.  Ey.  Co.  V.  Phillips,  111  Iowa,  377,  82  N.  W.  787. 

240  Brandirf  v.  Harrison  Co.,  50  Iowa,  164;  Montis  v.  McQuiston, 
107  Iowa,  651,  78  N.  W.  704. 


S  404  EQUITABLE  KEMEDIES.  692 

Likewise,  an  injunction  will  issue  to  restrain  the  col- 
lection of  a  tax  levied  by  virtue  of  a  mistaken  certificate 
as  to  the  result  of  an  election  ;2^^  and  when  the  tax  was 
voted  by  the  electors  as  the  result  of  misrepresenta- 
tion.2« 

An  injunction  will  not  issue  to  restrain  the  collec- 
tion of  a  tax  when  there  is  an  adequate  remedy  at  law 
by  appeal.  Thus,  an  injunction  will  not  be  granted  be- 
cause of  corruption  in  levying  the  tax,  because  an  ade- 
quate legal  remedy  is  provided.^^^  Nor  will  such  relief 
be  granted  when  there  is  an  adequate  remedy  by  ap- 
plication to  the  board  of  equalization,  and  no  such  ap- 
plication is  made.^^* 

In  order  to  obtain  an  injunction  to  restrain  a  sale 
for  taxes,  the  plaintiff  must  show  that  he  is  the  owner 
of  the  land  about  to  be  sold.  When  there  is  grave 
doubt  as  to  the  ownership,  the  injunction  will  be  re- 
fused.^^'^ 

§  404.  Special  Assessments — An  injunction  will  issue 
against  the  collection  of  a  special  assessment  when 
there  is  a  jurisdictional  defect  in  the  proceedings. 
Thus,  where  the  city  council  neglects  to  determine  in 
advance  of  the  publication  of  notice  the  kind  of  material 
to  be  used,  as  required  by  statute,  an  injunction  will 
issue.^*®  And  in  such  a  case  the  owner  is  not  estopped 
because  some  of  the  work  has  been  done.^^'     If  a  city 

241  CatteU  V.  Lowry,  45  Iowa,  478. 

242  Sinnett  v.  Moles,  38  Iowa,  25. 

843  Bogaard  v.  Independent    School  Dist.,  93  Iowa,  269,  61  N.    W. 
859. 

244  Collins  V.  City  of  Keokuk,  118  Iowa,  30,  91  N.  W.  791. 

245  Broderick  v.  Allamakee  County,  104  Iowa,  750,  73  N.  W.  884. 

246  Coggeshall   v.   Des   Moines,   78   Iowa,   235,  41   N.   W.   617.     Be- 
hearing  denied,  42  N.  W.  650. 

847    Id. 


693  ENJOINING    TAXATION;    KANSAS.  §  405 

council  has  no  authority  whatever  to  assess  the  prop- 
erty of  the  plaintiff  for  an  improvement,  he  may  enjoin 
the  enforcement  of  the  assessment  without  resorting  to 
the  appeal  to  the  district  court  provided  for  in  Code  of 
1S9T,  section  839.^*^  Where  the  entire  proceedings  for 
a  street  improvement  are  void,  a  sale  of  his  property 
thereunder  may  be  enjoined,  though  he  did  not  appear 
before  the  council  and  object  to  the  assessment.^*' 

§  405.  Kansas. — The  Kansas  code  provides  that  "an 
injunction  may  be  granted  to  enjoin  the  illegal  levy  of 
any  tax,  charge,  or  assessment,  or  the  collection  of  any 
illegal  tax,  charge  or  assessment,  or  any  proceeding  to 
enforce  the  same;  and  any  number  of  persons  whose 
property  is  affected  by  a  tax  or  assessment  so  levied 
may  unite  in  the  petition  filed  to  obtain  such  injunc- 
tion."^^®  The  supreme  court  of  the  state  has  held  that 
this  gives  an  enlarged  or  additional  remedy  to  the  tax- 
payer, but  that  the  jurisdiction  is  to  be  exercised  upon 
equitable  principles.^^^  An  injunction  will  therefore 
issue  at  the  suit  of  interested  parties  to  restrain  the  col- 
lection of  an  illegal  tax  as  against  themselves.  Thus, 
where  an  assessor  illegally  raises  an  assessment  on  per- 
sonal property  after  a  proper  return  has  been  made,  an 
injunction  will  issue.^^^  Likewise,  where  a  railroad 
is  assessed  at  its  full  value  while  other  property  is 
rated  at  only  twenty-five  per  cent,  the  company  may 
obtain  an  injunction  against  the  collection  of  the  illegal 

248  Ft.  Dodge  Electric  L.  &  P.  Co.  v  City  of  Ft.  Dodge,  115  Iowa, 
568,  89  N.  W.  7,  and  cases  cited. 

249  Gallagher  v.  Garland  (Iowa),  101  N.  W.  867. 

250  Code,  S  253. 

251  Stewart  v.  Commisaioners  of  Wyandotte  Co.,  45  Kan.  708,  29 
Am.  St.  Rep.  746,  26  Pac.  683. 

252  Gibbina  v.  Adamson,  44  Kan.  203,  24  Pac.  51. 


§  405  EQUITABLE   EEMEDIES.  694 

excess  upon  tendering  tlie  amount  legally  due.^^^ 
Again,  where  a  state  board  of  equalization  orders  an  in- 
crease in  assessments  upon  all  except  railroad  property, 
and  the  local  ofScers  fail  to  make  the  increase,  the  rail- 
road company  is  injured  and  may  obtain  an  injunc- 
tion.2^^  And  an  injunction  will  also  issue  when  a  bank 
is  illegally  assessed  on  its  capital  stock,^^^  But  the  in- 
junction will  not  issue  merely  because  plaintiff  fears 
that  an  illegal  tax  may  be  levied.^^* 

Where,  however,  the  property  is  not  exempt  from 
taxation,  and  in  justice  the  tax  ought  to  be  paid,  an 
injunction  will  not  issue  to  restrain  its  collection  be- 
cause of  errors  or  irregularities  in  the  proceedings  of 
the  taxing  oflficers.^^'^  Thus,  an  injunction  will  not 
issue  when  a  tax  legally  voted  is  illegally  reduced  ;-^^ 
nor  where  assessments  are  based  upon  only  twenty-five 
per  cent  of  the  actual  cash  value  although  a  statute 
requires  that  they  be  levied  at  the  actual  value  ;-^^  nor 
when  the  assessment  is  set  out  in  detail  on  the  books 
when  a  statute  provides  that  it  be  groufted  under  one 
head.^^''     Likewise,  it  has  been  held  that  the  assessment 

253  Chicago,  B.  &  Q.  E.  Co.  v.  Board  of  Commissioners,  54  Kan.  781, 
39  Pac.  1039. 

254  Missouri,  K.  &  T.  Ey.  Co.  v.  Board  of  Commissioners,  9  Kan. 
App.   350,  58  Pac.   121. 

255  First  Nat.  Bank  v.  Fisher,  45  Kan.  726,  26  Pac.  482. 

256  Wyandotte  &  K.  C.  Bridge  Co.  v.  Board  of  Commissioners, 
10  Kan.  326. 

257  Kansas  Mut.  Life  Assn.  v.  Hill,  51  Kan.  636,  33  Pac.  300; 
Missouri  Eiver  F.  S.  &  G.  E.  Co.  v.  Morris,  7  Kan.  210;  Challiss  v. 
Commrs,  of  Atchison  County,  15  Kan.  49;  Chicago,  B.  &  Q.  E.  Co.  v. 
Clerk  of  Norton  County,  55  Kan.  386,  40  Pac.  654;  Parker  v.  Challiss, 
9  Kan.  155;  Button  v.  Citizens' Nat.  Bank,  53  Kan,  440,  36  Pac.  719; 
Eyan  v.  Board  of  Commissioners,  30  Kan.  185,  2  Pac.  156;  Citv  of 
Lawrence  v.  Killam,  11  Kan.  499. 

258  Seward  v.  Eheiner,  2  Kan.  App.  95,  43  Pac.  423. 

259  Challiss  V.  Eigg,  49  Kan.  119,  30  Pac.  190. 

260  Kansas  City,  Ft.  S.  &  G.  E.  E.  Co.  v.  Scammon,  45  Kan.  481,  25 
Pae.  858. 


695  ENJOINING   TAXATION;   KANSAS.  S  406 

of  some  at  the  full  cash  value  while  others  are  assessed 
at  much  less,^*'^  or  the  failure  of  township  assessors  to 
meet  and  agree  upon  an  equal  basis  of  Yaluation,^^^  or 
the  levying  of  a  slight  excess,^*'^  are  all  mere  irregulari- 
ties which  do  not  warrant  the  issuance  of  an  injunction. 
For  the  same  reason,  an  injunction  will  not  issue  when 
an  assessment  is  excessive  merely  as  an  error  of  judg- 
ment, unless  the  excess  is  so  great  as  to  raise  a  pre- 
sumption of  fraud.^^"*  And  it  is  well  settled  that  it 
will  not  issue  when  an  error  in  assessment  is  induced 
by  the  action  of  the  tax-payer  himself.-^^ 

§  406.  Parties. — Under  the  statute  any  one  or  more 
of  a  number  of  persons,  whose  property  is  affected  by 
an  illegal  tax  or  assessment,  may  maintain  an  action 
to  enjoin  the  collection  of  such  tax  or  assessment  so 
far  as  it  affects  his  or  their  property,  without  joining 
others  as  plaintiffs  whose  property  may  also  be  af- 
fected.^*^^  This  does  not  authorize,  however,  one  to 
maintain  an  action  for  the  benefit  of  all.^^'  And  where 
the  plaintiff  is  a  municipal  corporation  it  will  not  be 
allowed  to  maintain  the  action  for  the  benefit  of  its 
citizens.^^^  In  such  a  case  there  is  a  double  reason  for 
refusing  relief,  for  the  corporation  has  no  such  direct 
interest  as  to  give  it  a  standing  in  court  to  enjoin  any 
part  of  the  tax,  for  it  is  not  a  tax-payer.     The  statute 

261  Adams  v.  Beman,  10  Kan.  37. 

262  Smith   V.   Commrs.   of   Leavenworth   Co.,   9   Kan.   296. 
2G3   Id. 

264  Board  of  Commissioners  of  Lincoln  Co.  v.  Bryant,  7  Kan.  App. 
252,  53  Pac.  775. 

265  Bank  of  Santa  Fe  v.  Buster,  50  Kan.  356,  31  Pac.  1094;  Win- 
field  Bank  v.  Nipp,  47  Kan.  744,  28  Pac.  1015. 

266  Code,  §  253;   Gilmore  v.  Fox,  10  Kan.  509. 

267  "Wyandotte  &  K.  C.  Bridge  Co.  v.  Board  of  Commissioners,  10 
Kan.  326. 

268  Center  Township  v.  Hunt,  16  Kan.  430. 


§  407  EQUITABLE  EEMEDIES.  696 

does  not  give  the  right  to  two  or  more  persons  to  unite 
in  an  action  to  enjoin  two  illegal  taxes  severally  as- 
sessed against  each  of  them.  When  the  tax  is  illegal 
in  itself,  then  as  many  as  have  property  within  the  dis- 
trict may  join.  But  when  a  tax  is  valid,  and  becomes 
illegal  only  as  applied  to  particular  persons  or  prop- 
erty, or  to  particular  cases,  then  each  person  severally 
interested  must  sue  alone.^"^ 

In  actions  to  restrain  the  collection  of  municipal  taxes, 
it  is  generally  held  that  the  taxing  corporation  is  a 
necessary  party  defendant.^'^^  The  reason  for  the  rule 
is  that  such  corporation  is  interested  in  the  outcome, 
and  should  not  be  deprived  of  its  rights  without  a  hear- 
ing. Where,  however,  the  suit  is  to  enjoin  the  sale  of 
property  under  a  tax  warrant,  and  the  only  question  is 
whether  the  property  is  subject  to  levy,  the  sheriff  may 
be  made  sole  defendant.^'^ 

§  407.  Tender — When  a  tax  is  valid  in  part  and  void 
in  part,  an  injunction  will  be  refused,  upon  the  prin- 
ciple that  he  who  seeks  equity  must  do  equity,  unless  a 
tender  is  made  of  the  amount  legally  due.^^^  Thus, 
where  a  tax  is  attacked  as  being  excessive,^^^  or  as  dis- 
criminating against  the  plaintiff,-^^  a  tender  is  a  con- 
dition of  relief.^^^     And  a  mere  averment  of  readiness 

269  Missouri  Kiver,  F.  S.  &  G.  E.  Co.  v.  Morris,  7  Kan.  210. 

270  Gilmore  v.  Fox,  10  Kan.  509;  Jeffries-Ba  Som  v.  Nation,  63  Kan. 
247,  65  Pac.  226. 

271  Cook  V.  Condon,  6  Kan.  App.  574,  51  Pac.  587. 

272  City  of  Lawrence  v.  Killam,  11  Kan.  499;  Bank  of  Garnett  v. 
Ferris,  55  Kan.  120,  39  Pac.  1042;  City  of  Ottawa  v.  Barney,  10  Kan. 
270;  Gibbins  v.  Adamson,  44  Kan.  203,  24  Pac.  51;  Wilson  v.  Longen- 
dyke,  32  Kan.  267,  4  Pac.  361. 

273  City  of  Ottawa  v.  Barney,  10  Kan.  270. 

274  Bank  of  Garnett  v.  Ferris,  55  Kan.  120,  39  Pao.  1042. 

275  Hagaman  v.  Commissioners  of  Cloud  County,  19  Kan.  394. 


697  ENJOINING   TAXATION;   KANSAS.  §  408 

and  willingness  to  pay  is  not  suflQcient.^^^  Where, 
however,  the  tax  is  wholly  void,  a  tender  is  obviously 
unnecessary. 

§  408.  Special  Assessments. — ^When  a  special  assess- 
ment is  illegal  and  void,  and  the  action  is  brought 
within  the  statutory  time,  an  injunction  will  issue 
against  its  collection.^^^  Thus,  where  a  city  council  in- 
serts in  a  contract  a  provision  that  the  contractor  shall 
keep  the  streets  in  repair  for  a  term  of  years,  the  as- 
sessment levied  is  void  and  an  injunction  will  issue.^^* 

A  property  owner,  however,  who  lives  in  the  neigh- 
borhood, who  signs  the  petition  for  the  improvement, 
and  whose  property  is  greatly  benefited,  is  not  entitled 
to  an  injunction  to  restrain  the  collection  of  an  assess- 
ment levied  therefor,  although  the  improvement  is  made 
without  any  authority  whatever.^^^  This  rule  is  based 
upon  the  doctrine  of  estoppel. 

By  statute  it  is  provided  that  no  suit  to  enjoin  the 
making  of  a  special  assessment  shall  be  brought  after 
the  expiration  of  thirty  days  from  the  time  the  amount 
due  on  each  lot  is  ascertained.^*^  Under  this  statute, 
it  is  held  that  an  injunction  will  not  issue  when  the 
suit  is  brought  after  the  expiration  of  this  time,  espe- 
cially   if  the  proceedings  are  valid  on  their  face.^*^ 

276  First  Nat.  Bank  v.  Fisher,  45  Kan.  726,  26  Pac.  48'J. 

277  Andrews  v.  Love,  50  Kan.  701,  31  Pac.  1094. 

278  City  of  Kansas  City  v.  Hanson,  8  Kan.  App.  290,  55  Pac.  513. 

279  Downs  V.  Wyandotte  Co.  Commissioners,  48  Kan.  640,  29  Pac. 
1077;  Stewart  v.  Commissioners,  45  Kan.  708,  23  Am.  St.  Eep.  746,  26 
Pac.  683;  Commissioners  v.  Hoag,  48  Kan.  413,  29  Pac.  758. 

280  Gen.  Stats.  1897,  c.  32,  §  212. 

281  City  of  Kansas  City  v.  Gray,  62  Kan.  198,  61  Pac.  746;  Wahl- 
green  v.  City  of  Kansas  City,  42  Kan.  243,  21  Pac.  1068;  City  of 
Topeka  v.  Gage,  44  Kan.  87,  24  Pac.  82;  Doran  v.  Barnes,  54  Kan. 
2.'?8,  38  Pac.  300;  City  of  Leavenworth  v.  Jones,  69  Kan.  857,  77  Pac 
273. 


i  409  EQUITABLE  REMEDIES.  69S 

Until  an  appraisement  is  made  and  the  amount  to  be 
charged  against  each  lot  or  parcel  of  land  is  ascertained, 
no  cause  of  action  accrues.  Before  that  time  the  dan- 
ger of  injury  to  the  plaintiffs  is  too  remote  and  prob- 
lematical to  warrant  the  granting  of  an  injunction.^^^ 

An  injunction  to  restrain  the  building  of  curbing  and 
the  levying  and  assessing  of  taxes  therefor  will  not  issue 
when  all  the  things  sought  to  be  prevented  have  actually 
been  done.^^^ 

§  409.  Kentucky. — In  Kentucky,  an  injunction  will 
issue  to  restrain  the  collection  of  an  illegal  and  void 
tax  upon  the  ground  of  the  inadequacy  of  the  remedy 
at  law.  "The  officer,  acting  in  good  faith  and  under 
the  color  of  right,  is  justified  by  his  process,  and  is  not 
liable  as  a  trespasser ;  and,  as  suit  would  not  lie  against 
the  state  directly,  the  only  complete  remedy  is  by  in- 
junction."^^^  Thus,  an  injunction  will  be  granted  to 
restrain  the  collection  of  a  tax  based  on  an  assessment 
.which  has  been  illegally  raised  without  notice  to  the 
tax-payer.^^^  Likewise,  the  injunction  will  issue  to  re- 
strain the  collection  of  a  municipal  tax  based  on  an 
assessment  void  because  the  assessor  acts  under  the  in- 
struction of  the  local  legislative  body  and  copies  the 
assessment  from  the  county  roll  instead  of  making  one 
himself.-^®  And  the  mere  fact  that  the  assessment  in- 
cludes a  valid  poll-tax  is  no  ground  for  refusing  the  in- 

282  Mason  v.  City  of  Independence,  61  Kan.  88,  59  Pac.  272;  City 
of  Kansas  City  v.  Smiley,  62  Kan.  718,  64  Pac.  613;  Dever  v.  City 
of  Junction  City,  45  Kan.  417,  25  Pac.  861. 

283  McCurdy  v.  City  of  Lawrence,  9  Kan.  883,  57  Pac.  1057. 

284  Gates  V.  Barrett,  79  Ky.  295;  Negley  v.  Henderson  Bridge  Co., 
107  Ky.  414,  54  S.  W.  171. 

285  Negley  v.  Henderson  Bridge  Co.,  107  Ky.  414,  54  S.  W.  171. 

286  Turner  v.  Town  of  Pewee  Valley,  100  Ky.  288,  38  S.  W.  143, 
688. 


699  ENJOINING  TAXATION;  KENTUCKY,  §  409 

junction  when  it  appears"  that  the  tax-payer  has  suf- 
ficient personal  property  out  of  which  it  might  be  satis- 
fied.^^'^  But  the  injunction  will  not  be  granted  merely 
because  the  plaintiff  thinks  the  assessment  excessive  ;-^^ 
nor  will  it  be  granted  merely  because  there  have  been 
irregularities  in  the  procedure.  Thus,  an  injunction 
will  not  be  granted  merely  because  the  city  has  failed 
to  tax  certain  personalty  not  exempt  from  taxation  ;-^^ 
nor  because  property  belonging  to  a  mother  and  her  son 
has  been  assessed  in  the  name  of  the  father,  it  having 
been  so  listed  by  the  son.^^^  And  it  is  no  ground  for 
an  injunction  that  the  taxing  officer,  who  is  an  officer 
de  facto,  may  not  be  the  legal  official  because  of  certain 
irregularities  in  the  election.-^^  The  court  will  not,  at 
the  suit  of  an  individual  tax-payer,  inquire  into  the 
necessity  for  the  levy.^^^ 

Personal  Property. — The  rule  as  laid  down  above  is 
bioad  enough  to  warrant  the  issuance  of  an  injunction 
to  restrain  the  collection  of  an  illegal  tax  on  personal 
property,  for  the  court  holds  that  there  is  not  an  ade- 
quate remedy  at  law.^^^ 

An  injunction  will  not  issue,  however,  to  restrain 
the  collection  of  a  tax  on  the  ground  that  property  not 
taxable  has  been  assessed,  unless  the  statutory  mode  of 
correction  has  been  tried  first^*^^  In  such  a  case  there 
is  an  adequate  remedy  at  law. 

287  Id. 

288  Eoyer  Wheel  Co.  v.  Taylor  County,  104  Ky.  741,  47  S.  W.  876. 

289  Levi  V.  City  of  Louisville,  97  Ky.  394,  30  S.  W.  973,  28  L.  R.  A. 
4S0. 

290  Eyan  v.  City  of  Central  City,  21  Ky.  Law  Eep.  1070,  54  S.  W,  2. 

291  Chambers  v.  Adair,  23  Ky.  Law  Eep.  373,  62  S.  W.  1128. 

292  Mclnerney  v.  Huelefeld,  116  Ky.  28,  25  Ky.  Law  Eep.  272,  75 
6.  W.  237. 

293  Gates  V.  Barrett,  79  Ky.  295. 

294  Bell  County  Coke  &  Imp.  Co.  v.  Board  of  Trustees  etc.,  19  Ky. 
Law  Eep.  789,  42   S.  W.  92. 


S  409  EQUITABLE  REMEDIES.  700 

Not  only  will  the  injunction  issue  against  the  collec- 
tion of  an  illegal  tax,  but  where  the  county  judge  is 
proceeding  to  assess  property  for  taxation  to  which  it 
is  not  legally  liable,  he  may  be  restrained  from  so  as- 
sessing, because  his  action  is  final.^^'^  Where,  however, 
the  assessment  is  being  made  by  an  ordinary  taxing 
officer  from  whom  an  appeal  may  be  taken,  an  injunc- 
tion will  not  issue  to  restrain  the  mere  making  of  the 
assessment. 

A  quasi  public  corporation,  such  as  a  water  company 
which  supplies  a  municipality,  may  enjoin  the  seizure 
of  its  property  for  taxes,  where  such  seizure  would  de- 
prive the  public  of  the  benefits  to  be  derived  from  it. 
Such  a  corporation,  however,  is  not  entitled  to  escape 
taxation,  and  therefore  the  court  will  require  it  to  pay 
the  money  into  court,  or  to  place  the  management  in 
the  hands  of  a  receiver,  in  order  that  the  burden  may 
be  discharged.2^° 

In  an  action  to  enjoin  the  collection  of  a  tax  the  pre- 
sumption is  in  favor  of  its  legality,  and  therefore  the 
burden  of  proof  is  upon  the  plaintiff  to  show  its  il- 
legality.-^'' 

If  the  tax-payer  is  unsuccessful  in  his  application 
for  an  injunction,  judgment  will  be  entered  against 
him  for  the  amount  of  the  tax.^^* 

Tender. — Where  part  of  a  tax  is  legal  and  part  il- 
legal, the  tax-payer  is  entitled  to  an  injunction  only 
upon  paying  the  legal  part.^^' 

295  Baldwin   v.   Shine,  84  Ky.  510,   2   S.  W.   164. 

296  Louisville  Water  Co.  v.  Hamilton,  81  Ky.  517. 

297  Board  of  Councilmen  of  City  of  Frankfort  v.  Mason  &  Foard 
Co.,  100  Ky.  48,  37  S.  W.  290. 

298  Town  of  Central  Covington  v.  Park,  21  Ky.  Law  Eep.  1847,  56 
B.  W.  650. 

299  Thompson  v.  City  of  Lexington,  104  Ky.  165,  46  S.  W.  481. 


701       ENJOINING  TAXATION;  LOUISIANA— MAINE.    §§410,411 

§  410.  louisiana. — In  Louisiana,  "it  is  well  settled 
that  where  an  officer  is  proceeding  to  collect  a  state  tax 
illegally,  either  on  account  of  a  void  assessment  or  ir- 
regularity in  the  mode  of  collecting,  or  for  other  cause, 
though  the  state  is  interested  in  such  proceeding  and 
the  officer  is  acting  under  the  direct  authority  from 
the  state,  that  the  proceedings  may  be  arrested  by  in- 
junction in  a  suit  against  the  officer  alone. "^'^'^  Where, 
however,  the  tax  is  apparently  valid  on  its  face,  and 
the  tax  roll  has  been  placed  in  the  hands  of  the  tax 
collector,  the  legality  cannot  be  tested  by  an  injunction 
suit  against  the  collector  alone.^"^ 

An  injunction  will  not  be  granted  to  restrain  the  col- 
lection of  an  excessive  tax,  unless  the  tax-payer  has 
first  appealed  to  the  board  of  reviewers  ;^°2  nor  will  it 
be  granted  at  the  suit  of  a  municipal  corporation  suing 
in  the  interests  of  its  tax-payers  ;^'^^  nor  to  prevent  the 
holding  of  an  election  to  vote  a  tax.^*^^ 

An  injunction  may  be  granted  to  restrain  a  sale  for 
taxes  which  have  been  paid.^"*^ 

§  411.  Maine — The  mere  illegality  of  a  tax  is  no 
ground  for  the  injunction;  but  the  prevention  of  a 
multiplicity  of  suits  is  very  distinctly  recognized  as  a 
ground,  where  the  entire  tax  is  illegal  because  assessed 
without  authority  of  Iaw.^°^ 

300  Budd  et  al.  v.  Tax  Collector,  36  La,  Ann.  959. 

301  Gaither  v.  Green,  40  La.  362,  4  South.  210 j  Kansas  City  S.  A 
O.  Ry.  Co.  V.  Davis,  50  La.  1054,  23  South.  946. 

302  Liquidating  Commissioners  of  N.  O.  Warehouse  Co.  y.  Marrero, 
106  La.  130,  30  South.  305. 

303  Town  of  Donaldsonville  v.  Police  Jury,  113  La.  16,  36  South. 
873. 

304  Boudanez  v.  New  Orleans,  29  La.  Ann.  271. 

305  Kock  V.  Triche,  52  La.  825,  27  South.  354. 

306  Carlton  v.  Newman,  77  Me.  408,  1  Atl.  194;  see  passage  quoted 
iB  I  Pom.  Eq.  Jur.  (3d  ed.),  §  260,  note  (d). 


§  412  EQUITABLE  REMEDIES.  702 

§  412.  Maryland. — In  Maryland,  "the  collection  of 
taxes  will  not  be  interfered  with  or  restrained  by  a 
court  of  equity  for  mere  irregularities  in  their  pro- 
ceedings, or  for  any  hardship  that  may  result  from 
their  collection.  It  is  only  when  the  tax  itself  is 
clearly  illegal,  or  the  tribunal  imposing  it  has  clearly 
exceeded  its  powers,  or  the  rights  of  the  tax-payers  have 
been  violated,  that  the  interposition  of  the  special  rem- 
edy by  injunction  can  be  successfully  invoked,  and 
only  then  when  no  appellate  tribunal  has  been  created 
with  power  to  remedy  the  wrong."^*^^  In  accordance 
with  the  rule  as  thus  laid  down,  an  injunction  has  been 
granted  to  restrain  the  collection  of  a  tax  on  exempt 
property.^°^  Likewise,  an  injunction  has  been  granted 
to  restrain  the  collection  of  a  tax  on  property  improp- 
erly returned  by  the  registrar  of  wills  as  being  in  the 
hands  of  an  administrator,  when  it  has  really  been  dis- 
tributed.309 

Ordinarily,  no  relief  by  injunction  will  be  granted 
unless  the  tax-payer  applies  first  to  the  county  commis- 
sioners for  correction  of  the  tax.^^*^  But  this  applica- 
tion is  unnecessary  when  the  tax  is  void  for  a  juris- 
dictional defect.^^^ 

307  County  Commissioners  of  Allegany  Co.  v.  Union  M.  Co.,  61 
Md.  545.  In  general,  see  Mayor  etc.  of  Baltimore  v.  Porter,  18  Md. 
284,    79    Am.    Dec.    686. 

308  Sindall  v.  Mayor  etc.  of  Baltimore,  93  Md.  526,  49  Atl.  645; 
Valentine  v.  City  of  Hagerstown,  86  Md.  486,  38  Atl.  931.  In  Joest- 
ing  V.  Mayor,  97  Md.  589,  55  Atl.  456,  an  injunction  was  granted 
restraining  the  collection  of  an  assessment  on  property  not  subject 
thereto. 

309  Nicodemus  v.  Hull,  93  Md.  364,  48  Atl.  1094. 

310  Baldwin  v.  Commissioners  of  Washington  Co.,  85  Md.  145,  36 
Atl.  764;  O'Neal  v.  Va.  &  Md.  Bridge  Co.,  18  Md.  1,  79  Am.  Dec.  669; 
Methodist  Protestant  Church  v.  City  of  Baltimore,  6  Gill,  391,  48  Am. 
Dec.  540. 

311  Mayor  etc.  of  Baltimore  v.  Poole,  97  Md.  67,  54  Atl.  681. 


/03  ENJOINING  TAXATION;   MASSACHUSETTS.     §§413,414 

A  mere  error  in  the  assessment  is  not  ground  for  re- 
lief. =^^2 

Under  a  code  provision  that  courts  of  equity  have  no 
jurisdiction  of  suits  where  the  original  debt  or  damage 
does  not  amount  to  twenty  dollars,^^^  it  has  been  held 
that  an  injunction  will  not  issue  to  restrain  the  collec- 
tion of  a  tax  of  seven  dollars  and  thirty-two  cents.^^* 

§  413.  Special  Assessments. — Equity  will  enjoin  the 
collection  of  special  assessments  levied  without  author- 
ity, in  order  to  prevent  multiplicity  of  suits  or  cloud 
on  title.  Thus,  an  injunction  will  issue  to  prevent 
the  sale  of  land  to  satisfy  a  street  assessment  levied 
without  the  assent  of  the  owners  of  a  majority  of  feet 
fronting  on  the  street,  w^hen  the  statute  requires  such 
assent.^  ^^ 

§  414.  Massachusetts. — The  collection  of  illegal  taxes, 
whether  on  real  or  on  personal  property,  is  not  subject 
to  injunction  in  this  state.  A  tax-payer  who  has  been 
illegally  assessed  has  an  adequate  and  complete  remedy 
at  law  by  paying  the  tax  and  suing  to  recover  it  back.^^** 
"The  legislature  has  evidently  regarded  this  remedy  as 
adequate  and  complete,  having  regard  to  a  prompt  and 
unembarrassed  assessment  and  collection  of  taxes  for 
the  maintenance  of  the  government. "^^^ 

312  Moffatt  V.  Calvert  Co.  Commissioners,  97  Md.  266,  54  Atl.  960. 

313  Code   of   Pub.   Gen.    Laws,   art.    16,    §    91. 

314  Kuenzel  v.  Mayor   etc.  of  Baltimore,  93  Md.  750,  49  Atl.  649. 

315  Holland  v.  Mayor  etc.  of  Baltimore,  11  Md.  186,  69  Am.  Dec. 
195. 

316  Brewer  v.  City  of  Springfield,  97  Mass.  152;  Loud  v.  City  of 
Charlestown,  99  Mass.  208;  Macy  v.  Nantftcket,  121  Mass.  351  (inter- 
pleader not  maintainable  to  determine  in  which  town  plaintiff  is  liable 
to  be  taxed;  but  the  objection  may  be  waived:  Forest  Eiver  Lead  Co. 
V.  Salem,  165  Mass.  193,  202,  42  N.  E.  802);  Kelley  v.  Barton,  174 
Mass.  396,  54  N.  E.  860. 

317  Loud  V.  City  of  Charlestown,  99  Mass.  208. 


S  415  EQUITABLE  REMEDIES.  704 

Illegal  special  assessments  stand  upon  the  same 
ground  as  general  taxes,  with  respect  to  the  adequacy 
of  the  legal  remedy  by  paying  the  assessment  and  suit 
to  recover  back.^^^  An  injunction  will  not  issue  to  re- 
strain the  collection  of  an  illegal  assessment  for  local 
improvement  when  there  is  no  threat  to  collect  ;^^*  but 
where  the  property  has  been  sold  for  non-payment  and 
the  recitals  would  in  a  short  time  become  prima  facie 
evidence  of  the  facts  stated  in  the  deed,  equity  may  in- 
terfere to  remove  the  cloud  on  the  title.^^^  Danger  of 
multiplicity  of  suits  to  collect  installments  of  the  as- 
sessment is  not  ground  for  relief,  when  these  may  be 
avoided  by  payment  of  the  whole  and  a  single  suit  to 
recover  back.^^i 

§  415.  Michigan — In  Michigan,  the  rule  has  been 
laid  down  by  Judge  Cooley  "that  equity  will  not  inter- 
fere to  restrain  the  collection  of  the  public  revenue 
for  mere  irregularities.  Either  it  should  appear  that 
the  property  is  exempt  from  taxation,  or  that  the  levy 
is  without  legal  power,  or  that  the  persons  imposing 
it  were  unauthorized,  or  that  they  have  proceeded 
fraudulently."^^^  Accordingly,  an  injunction  will  not 
issue  against  the  collection  of  a  general  tax  on  the 
ground  that  the  money  is  needed  only  to  replace  money 
unlawfully  expended  from  the  public  treasury.^^a  q^ 
the  other  hand,  it  will  issue  when  the  tax  is  fraudulent- 
ly levied.^^*  Therefore  a  tax  founded  on  a  fraudulent 
assessment  will  be  enjoined.     "An  assessment  is  not 

318  Hunnewell  v.  City  of  Charlestown,   106  Mass.  350. 

319  Clark  V.  City  of  Worcester,  167   Mass.  81,  44  N.  E.  1082. 

320  White  V.  Gove,  183  Mass.  333,  67  N.  E,  359. 

321  Greenhood  v.  MacDonald,  183  Mass.  342,  67  N.  E.  336. 

322  Albany  &  Boston  Min.  Co.  v.  Auditor-General,  37  Mich.  391. 

323  Glee  V.  Village  of  Trenton,  108  Mich.  293,  66  N.  W.  48. 

324  Merrill  v.  Humphrey,  24  Mich.  170. 


705  ENJOINING    TAXATION;    MICHIGAN.  |  416 

fraudulent  merely  because  of  being  excessive,  if  the 
assessors  have  not  acted  from  improper  motives;  but 
if  it  is  purposely  made  too  high,  through  prejudice  or 
a  reckless  disregard  of  duty,  in  opposition  to  what 
must  necessarily  be  the  judgment  of  all  competent 
persons,  or  through  the  adoption  of  a  rule  which  is 
designed  to  operate  unequally  upon  a  class,  and  to 
violate  the  constitutional  rule  of  uniformity,  the  case 
is  a  plain  one  for  the  equitable  remedy  of  injunction. "^25 
Likewise,  such  relief  is  proper  where  the  assessing 
officers  have  purposely,  in  violation  of  law,  exempted 
property  from  taxation,  so  that  the  burden  rests  un- 
equally.326  g^^  j^  ^.j^g  absence  of  fraud,  the  mere 
fact  that  the  assessment  is  unequal  is  no  ground  for 
an  injunction,  for  the  courts  will  not  revise  the  action 
of  a  board  of  equalization.^27 

Personal  Tax. — Ordinarily,  an  injunction  will  not 
issue  against  the  collection  of  a  purely  personal  tax 
which  is  not  a  charge  upon  land  f^^  nor  will  it  be  granted 
to  restrain  the  collection  of  a  tax  upon  land  when 
sufficient  personal  property  has  already  been  levied 
upon  to  satisfy  the  tax.^^a  g^t  there  are  exceptions 
when  the  personal  property  is  of  peculiar  value  to  the 
owner,  or  where  a  valuable  franchise  would  be  inter- 
fered with,  and  in  such  cases  the  injunction  will  be 
allowed.^^*^     Thus,  an  injunction  has  issued  against  the 

325  Pioneer  Iron  Co.  v.  City  of  Negaunee,  116  Mich.  430,  74  N.  W. 
700,  quoting  from  Cooley,  Taxation,  p.  784. 

326  Walsh  V.  King,  74  Mich.  350,  41  N.  W.  1080. 

327  McDonald  v.  City  of  Escanaba,  62  Mich.  555,  29  N.  W.  93. 

828  Henry  v.  Gregory,  29  Mich.  68;  Youngblood  v.  Sexton,  32  Mich. 
408,  20  Am.  Rep.  654. 

329  Id. 

330  City  of  Detroit  v.  Donovan,  127  Mich.  604,  8  Detroit  Leg.  N. 
465,  86  N.  W.  1032. 

Equitable  Remedies,  Vol.  1—45 


5  416  EQUITABLE  REMEDIES.  706 

collection  of  an  illegal  personal  tax  by  seizure  of  rail- 
road cars.^^^ 

Miilt'rpJicity  of  ^^uits. — Parties  severally  taxed,  and 
having  no  common  interest  except  in  the  question  of 
law  which  is  involved,  cannot  unite  to  have  the  tax 
enjoined  on  the  ground  of  preventing  a  multiplicity  of 
suits,  when  their  cases  severally  present  no  ground  for 
equitable  interference.^^^ 

Tender. — When  a  tax  is  valid  in  part,  the  tax-payer 
must,  as  a  condition  of  relief,  tender  the  amount  legally 
^yp  333  rpj^jg  ig  upon  the  principle  that  he  who  seeks 
equity  must  do  equity. 

§  416.  Special  Assessments. — An  injunction  will  issue 
when  a  special  assessment  levied  under  an  unconstitu- 
tional act  is  made  a  lien  on  real  estate.^^*  Thus,  an  as- 
sessment levied  according  to  superficial  area  without 
regard  to  benefits  will  be  enjoined.  Relief  will  be 
granted  where  the  assessment  is  made  without  juris- 
diction.^"^ But  an  injunction  will  not  issue  on  account 
of  mere  irregularities  in  the  assessment.^^^ 

Where  a  contract  for  a  public  improvement  is  regu- 
larly let  and  the  work  is  accepted  by  the  proper  board, 
an  injunction  will  not  issue  to  restrain  the  levying  of 
an  assessment  to  pay  therefor  on  the  ground  that  the 
work  has  been  improperly  done.^^^  Such  questions  are 
for  the  legislative  body  to  decide  in  the  exercise  of  its 
discretion. 

331  Id. 

332  Youngblood  v.  Sexton,  32  Mich.  406,  20  Am.  Rep.  654, 

333  Albany  &  Boston  Min.  Co.  v.  Auditor-General,  37  Mich.  391; 
Merrill  v.  Humphrey,  24  Mich.  170. 

334  Thomas  v.  Gain,  35  Mich.  156,  24  Am.  Rep.  535. 

335  Wreford  v.  City  of  Detroit,  132  Mich.  348,  93  N.  W.  876. 

336  Township  of  Flynn  v.  Woolman,  133  Mich.  508,  95  N.  W.  567. 

337  Dixon  V.  City  of  Detroit,  86  Mich.  516,  49  N.  W.  62S;  Motz 
V.  City  of  Detroit,  18  Mich.  495. 


707  ENJOINING  TAXATION;   MINNESOTA.  |  417 

An  injunction  will  not  be  granted  when  the  com- 
plainants, upon  the  principle  of  equitable  estoppel,  have 
lost  their  right  to  equitable  relief.  Thus,  where  a  street 
is  paved  as  a  result  of  a  petition  signed  by  complain- 
ants and  no  objection  is  made  until  the  work  is  com- 
pleted, an  injunction  against  the  assessment  will  be  re- 
fused.^^^  Likewise,  it  will  be  refused  where  the  prop- 
erty owners,  although  they  may  not  have  petitioned 
for  the  improvement,  stand  by  and  make  no  objection 
until  the  work  is  completed.^^^ 

§  417.  Minnesota. — In  Minnesota,  "the  general  rule 
appears  to  be  that  equity  will  not  interfere,  merely  be- 
cause the  tax  is  illegal  and  void,  but  there  must  be 
some  special  circumstances  attending  the  threatened 
injury,  to  distinguish  it  from  a  mere  trespass,  and  thus 
bring  the  case  within  some  recognized  head  of  equity 
jurisprudence. "^^°  To  bring  the  case  within  the  rule  it 
must  appear  that  there  will  be  irreparable  injury,  or 
that  a  multiplicity  of  suits  will  result,  or  that  a  cloud 
will  be  cast  upon  title  to  real  estate.^"*^ 

Personal  Property  Tax. — As  there  is  generally  an 
adequate  remedy  at  law  in  case  of  a  tax  on  personal 
property,  it  is  held  that  an  injunction  will  not  be 
granted  to  restrain  its  collection.^^^  In  order  to  bring 
the  case  within  the  jurisdiction  it  must  appear  that 

338  Motz  V.  City  of  Detroit,  18  Mich.  495. 

339  Walker  Township  v.  Thomas,  123  Mich.  290,  82  N.  W.  48; 
Lundbom  v.  City  of  Manistee,  93  Mich.  170,  53  N.  W.  161;  Byram 
V.  City  of  Detroit,  50  Mich.  56,  12  N.  W.  912,  14  N.  W.  698;  Farr  v. 
City  of  Detroit  (Mich.),  99  N.  W.  19;  Gatea  v.  City  of  Grand  Rapids, 
134  Mich.  96,  95  N.  W.  998. 

340  Clarke  v.  Ganz,  21  Minn.  387. 

341  Scribner  v.  Allen,  12  Minn.  148  (Gil.  85). 

342  Clarke  v.  Ganz,  21  Minn.  387;  Laird,  Norton  &  Co.  v.  Pine 
County,  72  Minn.  409,  75  N.  W.  723;  Bradish  v.  Lucken,  38  Mmn.  186, 
36  N.  W.  454. 


§  418  EQUITABLE  REMEDIES.  708 

there  is  no  adequate  remedy  at  law  or  that  such  rem- 
edy will  be  practically  valueless,  as  where  the  collector 
is  insolvent,  or  where  a  multiplicity  of  suits  will  be 
necessary.^^^  The  mere  fact  that  there  are  numerous 
tax-payers  in  the  same  position  as  the  plaintiff  does  not 
give  jurisdiction  on  the  ground  of  multiplicity  of  suits, 
at  least  in  the  absence  of  any  claim  that  the  suit  was 
brought  in  pursuance 'of  a  common  understanding,  and 
by  the  authority  of  such  tax-payers.^^^ 

Cloud  upon  Title. — Where  the  tax  proceedings  are 
void  on  their  face  they  do  not  cast  a  cloud  upon  the 
title  of  real  estate,  and  consequently  in  such  a  case  an 
injunction  will  not  ordinarily  be  granted. ^^^  And  even 
where  a  tax  deed  is  prima  facie  evidence  of  a  valid  title 
in  the  grantee,  the  injunction  will  not  issue  unless  the 
issuance  of  such  a  deed  is  threatened.  The  mere  levy- 
ing of  a  tax  for  which  the  land  might  be  sold  and  such 
a  deed  given,  is  not  a  sufticient  threat  to  warrant  an  in- 
junction.^"*® 

§  418.  Special  Assessments. — An  injunction  will  be  re- 
fused when  a  local  assessment  cannot  be  enforced  with- 
out giving  the  property  owner  a  full  and  adequate  op- 
portunity to  be  heard  in  court ;"^^  but  the  relief  may 
be  granted  if  the  city  does  not  object  to  the  matter  be- 
ing presented  in  such  a  proceeding.^^** 

343  Clarke  v.  Ganz,  21  Minn.  387. 

844  Bradish  v,  Lucken,  38  Minn.  186,  36  N.  W.  454. 

345   Scribner  v.  Allen,  12  Minn.  148   (Gil.  85). 

34  6    Id. 

347  Kelly  V.  City  of  Minneapolis,  57  Minn.  294,  47  Am.  St.  Eep. 
COS,  59  N.  W.  304,  26  L.  E.  A.  92;  Albrecht  v.  City  of  St.  Paul,  47 
Minn.  531,  50  N.  W.  608;  Fajder  v.  Village  of  Aitkin,  87  Minn.  445, 
92  N.  W.  332,  934. 

848  Albrecht  T.  City  of  St.  Paul,  47  Minn.  531,  50  N.  W.  608. 


709  ENJOINING   TAXATION;    MISSISSIPPI.  I  419 

§  419.  Mississippi. — The  Mississippi  code  provides 
that  "the  chancery  court  shall  have  jurisdiction  of  suits 
by  one  or  more  tax-payers  in  any  county,  city,  town  or 
village,  to  restrain  the  collection  of  any  taxes  levied, 
or  attempted  to  be  collected  without  authority  of 
law."^^®  Before  the  issuance  of  the  injunction  the 
plaintiff  must  enter  into  a  bond  conditioned  for  the 
prompt  payment  of  the  taxes  enjoined,  and  damages 
and  costs,  in  case  the  injunction  be  dissolved.^'^'^  Upon 
dissolution,  a  decree  must  be  entered  against  the  plain- 
tiff and  his  bondsmen  for  the  amount  of  the  taxes,  ten 
per  cent  penalty,  and  costs.^^^  These  sections  have 
been  construed  as  allowing  the  injunction  whenever 
the  tax  is  without  authority  of  law.^^^  The  injunction 
will  not  be  granted,  however,  until  the  proceedings 
have  gone  far  enough  to  enable  the  court  to  tell  the 
amount  for  which  a  decree  against  the  plaintiff  must 
be  entered  in  case  of  dissolution,  and  therefore  an  in- 
junction will  not  issue  to  restrain  the  mere  assessment 
of  an  ad  valorem  tax.^*^ 

Apart  from  statutory  authorization,  an  injunction 
will  not  ordinarily  issue  to  restrain  the  collection  of  a 
tax  on  personal  property,  because  in  such  a  case  there 
is  a  complete  and  adequate  remedy  at  law.^**  And  the 
mere  fact  that  there  are  a  great  many  tax-payers  simi- 
larly situated,  will  not  give  the  court  jurisdiction.^'^* 
But  the  insolvency  of  the  tax-collector  renders  the 
legal  remedy  inadequate,  within  the  meaning  of  the 
rule.^*« 

349  Code,  §  483. 

•  360  Code,  §  561. 

851  Code,  §  484. 

352  Yazoo  &  M.  V.  E.  Co.  v.  Adams,  73  Miss.  648,  19  South.  9L 

853  Yazoo  &  M.  V.  E.  Co.  v.  Adams.  73  Miss.  648,  19  South.  91, 

854  Coulson  V.  Harris,  43  Miss.  728. 
356  Id. 

856  Eichardson  v.  Scott,  47  Miss.  236. 


5  420  EQUITABLE  EEMEDIES.  710 

Where  a  tax  levy  is  in  excess  of  the  legal  limit,  only 
the  excess  will  be  enjoined.^"  Tender  of  the  valid  part 
of  the  tax  is  a  prerequisite  to  injunctive  relief.^^^ 

§  420.  Missouri. — The  supreme  court  of  Missouri  has 
stated  that  it  would  be  diflflcult  to  reconcile  the  authori- 
ties, either  in  that  state  or  elsewhere;  but  that  of  late 
years  the  court  has  been  disposed  to  regard  with  favor 
proceedings  which  are  preventive  in  their  character, 
rather  than  compel  the  injured  party  to  seek  redress 
after  the  damage  is  accomplished.^^^ 

The  court  should  require  the  payment  of  taxes  con- 
fessedly due,  before  granting  the  in j unction. ^^° 

Irregularities. — Equity  will  not  relieve  by  injunction 
against  mere  informality  of  tax  procedure,  where  no 
substantial  right  of  the  complaining  party  has  been 
infringed.  Equity  deals  with  the  substance  of  trans- 
actions, and  treats  their  form  as  of  secondary  impor- 
tance, unless  the  positive  law  (which  it  is  bound  to 
follow)   otherwise  ordains."*^^ 

Void  Tax. — Where  property  has  been  levied  on  to  en- 
force the  payment  of  a  void  tax,  injunction  is  the  proper 
remedy,  according  to  the  later  authorities.^^^     Thus, 

357  Lewis  V.  Village  of  Bogus  Chitto,  76  Miss.  356,  24  South.  87.5. 

358  Lewis  V.  Village  of  Bogue  Chitto,  76  Miss.  356,  24  South.  875; 
Mobile  &  O.  E.  K.  Co.  v.  Mosely,  52  Miss.  127. 

359  Overall  v.  Euenzi  (1877),  67  Mo.  203. 

360  Overall  v.  Euenzi,  67  Mo.  203.  See  Burnham  v.  Eogers,  167 
Mo.  17,  66  S.  W.  970. 

361  St.  Louis  &  S.  F.  Ey.  Co.  v.  Gracy,  126  Mo.  472,  29  S.  W.  579. 

362  St.  Louis  &  S.  F.  Ey.  Co.  v.  Apperson,  97  Mo.  301,  10  S.  W.  478; 
Noll  V.  Morgan,  82  Mo.  App.  112.  See,  howeo^er,  McPike  v.  Pew, 
43  Mo.  525,  holding  that  an  officer  seizing  property  under  a  void  tax 
levy  would  be  a  mere  trespasser,  and  that  the  injured  party  would 
have  an  ample  remedy  at  law;  to  the  same  effect  with  the  last  case, 
Barrow  v.  Davis,  46  Mo.  394,  and  Sayre  v.  Tompkins,  23  Mo.  443,  dis- 
tinguishing between  void  taxes  on  real  and  on  personal  property. 

Multiplicity  of  suits  is  emphatically  recognized  as  a  ground  of  ji.r- 


711  ENJOINING  TAXATION;  MISSOURI.  §  421 

the  property  owner  may  have  relief  by  injunction  as 
tx)  city  or  county  taxes  which  are  levied  in  excess  of  the 
constitutional  limit.^°^ 

Property  not  Subject  to  Taxation. — Injunction  is  an 
appropriate  remedy  to  prevent  the  collection  of  taxes 
against  property  not  the  subject  of  taxation.^^* 

Excessive  Assessment. — The  right  of  appeal  to  the 
county  board  of  equalization,  provided  by  statute,  is  an 
adequate  remedy,  and  excludes  any  remedy  in  equity.^*'^ 

Cloud  on  Title. — A  tax  sale  of  real  property  exempt 
by  law  from  taxation,  may  be  enjoined,  to  prevent  a 
cloud  on  the  title  ;^°^  and  in  general,  the  sale  of  lands 
for  the  payment  of  an  illegal  tax  will  be  enjoined,  for 
the  same  reason.^^"^ 

§  421.  Special  Assessments. — An  injunction  will  issue 
to  restrain  the  collection  of  a  void  special  assessment 
which  casts  a  cloud  upon  the  title  of  real  estate.  It  is 
not  necessary  to  constitute  a  cloud  which  will  warrant 
the  interposition  of  a  court  of  equity  that  the  defect 
should  not  be  apparent  on  the  face  of  the  proceedings. 

isdiction,  where  one  tax-payer  sues  for  all  the  tax-payers  of  a  town- 
ship or  county,  in  Ransey  v.  Bader,  67  Mo.  476,  480;  see  1  Pom.  Eq. 
Jur.   (3d  ed.),  §   260,  note   (d). 

363  Arnold  v.  Hawkins,  95  Mo.  569,  8  S.  W.  718;  Overall  v. 
Kuenzi,  67  Mo.  203. 

364  Valle  V.  Zeigler,  84  Mo.  214  (bonds  kept  out  of  the  state,  and 
shares  of  stock  in  manufacturing  companies);  Mechanics'  Bank  v. 
City  of  Kansas,  73  Mo.  555  (exempt  real  property). 

365  National  Bank  of  Unionville  v.  Staats,  155  Mo.  55,  55  S.  W.  626; 
Meyer  v.  Rosenblatt,  78  Mo.  495;  Deane  v.  Todd,  22  Mo.  90. 

366  Mechanics'  Bank  v.  City  of  Kansas,  73  Mo.  555. 

367  McPike  V.  Pen,  51  Mo.  63,  holding  that  failure  to  give  notice 
of  municipal  aid  election  rendered  the  tax  based  thereon  illegal; 
Leslie  v.  City  of  St.  Louis,  47  Mo.  474  (street  assessment) ;  Fowler 
V.  City  of  St.  Joseph,  37  Mo.  229  (street  assessment);  Lockwood  v. 
City  of  St.  Louis,  24  Mo.  20. 


i  421  EQUITABLE  REMEDIES.  712 

If  the  defect  is  such  as  to  require  legal  acumen  to  dis- 
cover it,  whether  it  appears  on  the  deed  or  proceedings, 
or  is  to  be  proven  aliunde,  equity  will  take  jurisdic- 
tion.^^® Thus,  where  an  ordinance  for  street  improve- 
ments provides  for  an  unauthorized  maintenance  of  the 
street,  and  the  assessment  levied  is  a  lien  on  realty,  an 
injunction  is  a  proper  remedy.^®^  Likewise,  it  is  proper 
when  a  hearing  is  denied  to  the  property  owners;''^"  or 
where  the  assessment  is  to  pay  for  property  condemned 
when  the  condemnation  proceedings  are  invalid  ;''*  or 
where  the  ordinance  providing  for  the  improvement  is 
fraudulent  and  oppressive,  and  imposes  a  burden  with- 
out any  corresponding  benefit.^'^^ 

One  property  owner  may  maintain  a  suit,  on  behalf 
of  himself  and  others  similarly  situated,  to  restrain  the 
execution  of  an  ordinance,  illegally  passed,  for  the 
improvement  of  a  street  at  the  expense  of  the  property 
owners,  in  order  to  prevent  a  multiplicity  of  suits.^^^ 

An  injunction  will  not  issue  to  restrain  the  collection 
of  an  assessment  to  pay  for  land  acquired  for  street 
purposes  by  condemnation  on  the  ground  that  the  city 
already  had  title,  when  the  property  owners  were  duly 
notified  of  the  assessment  proceedings.^'*  Nor  will  it 
be  granted  on  the  ground  that  the  city  has  made  a  con- 
tract that  such  property  should  be  exempt  from  such 
assessments,  for  such  a  contract  is  invalid.^'*     Again, 

368  Verdin  v.  City  of  St.  Louis,  131  Mo.  106,  33  S.  W.  480,  36  8.  W. 
62. 

369  Verdin  v.  City  of  St.  Louis,  131  Mo.  106,  33  S.  W.  480,  36  S.  W. 
52. 

370  Dennison  v.  City  of  Kansas,  95  Mo.  430,  8  S.  W.  429. 

371  Leslie  v.  City  of  St.  Louis,  47  Mo.  474. 

872  Skinker  v.  Heman,  148  Mo.  349,  49  S.  W.  1026. 

Ris  Dennison  v.  City  of  Kansas,  95  Mo.  430,  8  S.  W.  429. 

374  Michael  v.  City  of  St.  Louis,  112  Mo.  610,  20  8.  W.  666;  Bud- 
decke  v.  Ziegenhein,  122  Mo.  239,  26  S.  W.  696. 

375  Verna  v.  City  of  St.  Louis,  164  Mo.  146,  64  8.  W.  180. 


713  ENJOINING  TAXATION;  MISSOURI.  S  421 

it  is  not  autliorized  merely  because  otlier  property  is 
exempted  from  the  assessment,  especially  when  it  doe;? 
not  appear  that  the  complainant  is  assessed  more  than 
his  share.^^® 

An  injunction  will  not  issue  when  there  is  an  ade- 
quate remedy  at  law.^'^^  But  the  mere  rij^ht  to  inter- 
pose an  equitable  defense  to  any  action  of  ejectment 
which  might  be  brought  on  the  strength  of  a  sheriff's 
deed  is  not  an  adequate  remedy,  for  such  action  might 
not  be  brought  promptly;  and  in  such  event,  the  title 
to  plaintiff's  land  would  be  so  clouded  as  to  prevent 
a  sale.^'^* 

Where  the  work  is  done  without  authority,  as  under 
a  void  ordinance  or  contract,  the  abutting  owner  is  not 
estopped  by  his  failure  to  object  before  the  work  is  com- 
pleted.3^» 

Where  there  is  some  irregularity  in  doing  the  work, 
or  invalidity  of  some  part  of  the  contract  for  street  im- 
provements, an  abutting  owner  will  be  required,  as  a 
condition  precedent  to  an  order  enjoining  the  collection 
of  a  general  tax,  to  make  payment  or  tender  of  the  sum 
justly  due.^®**  Thus,  where  the  illegality  results  from 
a  construction  of  the  work  under  a  valid  ordinance  and 
contract  and  the  mistake  consists  in  pointing  out  the 
lines  of  the  street  by  the  city  authorities,  the  abutting 
owner  will  be  compelled  to  do  equity.^*** 

376  Page  V.  City  of  St.  Louis,  20  Mo.  137. 

877  Michael  v.  City  of  St.  Louis,  112  Mo.  eiO,  20  S.  W.  666. 

378  Verdin  v.  City  of  St.  Louis,  131  Mo.  106,  33  S.  W.  480,  36  S. 
W.  52;  Skinker  v.  Heman,  148  Mo.  349,  49  S.  W.  1026. 

379  Verdin  v.  City  of  St.  Louis,  131  Mo.  106,  33  S.  W.  480,  36  S. 
W.  52. 

380  Verdin  v.  City  of  St.  Louis,  131  Mo.  106,  33  S.  W.  480,  36  S. 
W.  52. 

881  Johnson  v.  Duer,  115  Mo.  366,  21  S.  W.  800. 


§§  422,423  EQUITABLE    EEMEDIES.  714 

§  422.  Montana.— The  Tolitical  Code  of  Montana  pro- 
hibits injunctions  to  restrain  the  collection  of  a  tax  or 
the  sale  of  property  for  non-payment  of  a  tax,  except 
where  the  tax  is  illegal,  or  not  authorized  by  law,  or 
where  the  property  is  exempt  from  taxation.^^^  A 
board  of  equalization  is  provided  to  correct  all  irregu- 
larities. Therefore  an  injunction  will  not  be  granted 
when  relief  can  be  obtained,  or  could  have  been,  before 
tlie  board.-^^^  But  where  the  tax  is  absolutely  void,  as 
where  a  school  tax  is  levied  upon  a  party  whose  place 
of  business  is  not  within  the  district,  the  injunction 
Vvill  be  granted.^®^  Relief  will  likewise  be  granted  to 
prevent  the  sale  of  personal  property  against  which  the 
tax  is  not  a  lien.^^^ 

Tender. — If  the  tax  is  valid  in  part  and  void  in  part, 
no  relief  can  be  obtained  unless  tender  is  made  of  the 
valid  part.^^^ 

§  423.  Nebraska.— In  Nebraska,  it  is  provided  by 
statute  that  ''no  injunction  shall  be  granted  by  any 
court  or  judge  in  this  state  to  restrain  the  collection 
of  any  tax  or  any  part  thereof,  hereafter  levied,  nor  to 
restrain  the  sale  of  any  property  for  the  non-payment 
of  any  such  tax  except  such  tax,  or  the  part  thereof  en- 
joined, be  levied  or  assessed  for  an  illegal  or  unauthor- 
ized purpose."^^^     Hence,  a  tax-payer  may  obtain  an 

382  Mont.  Pol.  Code.,  §§  4023-4026,  incl. 

383  Cobban  v.  Hinds,  23  Mont.  338,  59  Pac,  1;  Deloughrey  v.  Hinds, 
23  Mont.  260,  58  Pac.  709;  First  Nat.  Bank  v.  Bailey,  15  Mont.  301, 
39  Pac.  83;  Northern  Pac.  E.  R.  Co.  v,  Patterson,  10  Mont.  93,  24 
Pac.  704;  Ward  v.  Board  of  Commissioners,  12  Mont.  23,  29  Pac.  658, 

384  Green  Mountain  Stock  Eanch  Co.  v.  Savage,  15  Mont.  189,  38 
Pac.  940. 

385  Walsh  V.  Croft,  27  Mont.  407,  71  Pac,  409, 

386  Ward  V.  Board  of  Commissioners,  12  Mont.  23,  29  Pac.  658. 

387  Comp.  Stats.,  art,  1,  c.  77,  §  144.  See  construction  in  Phila- 
delphia Mtg.  &  Tr.  Co.  V.  City  of  Omaha,  63  Neb,  280,  93  Am,  St,  Eep. 


715  ENJOINING   TAXATION;    NEBRASKA.  §  423 

iniunction  to  restrain  the  Icyying  of  a  tax  to  pay  the 
principal  or  interest  on  void  bonds.^^® 

The  courts  have  construed  this  and  similar  statutes, 
however,  in  such  a  manner  as  to  make  the  rule  really 
broader.  It  is  held  that  the  section  has  no  reference  to 
taxes  wholly  void,  that  a  void  tax  is  no  tax,  and  that, 
therefore,  it  would  be  beyond  the  power  of  the  legisla- 
ture to  take  av^ay  the  equitable  remedy  in  such  a  case; 
for  such  an  act  would  be  in  conflict  with  the  constitu- 
tional provision  giving  the  courts  general  equity  ju- 
risdiction.^^^  Another  theory  upon  which  the  broader 
rule  has  been  supported  is  that  a  tax  levied  without 
authority  of  law  is  levied  for  an  unauthorized  pur- 
pose.^ ""^  At  any  rate,  it  may  be  safely  laid  down  as  a 
general  rule  that  an  injunction  will  be  granted  when 
a  void  tax  or  assessment  is  sought  to  be  collected.^^^ 
Thus,  where  a  tax  is  levied  on  property  without  the 
jurisdiction  of  the  taxing  district,^^^  or  where  the  prop- 
erty is  situated  in  territory  which  the  taxing  munici- 
pality has  ineffectually  tried  to  annex,^^^  ^j^g  injunc- 
tion will  issue.  Likewise,  where  a  statute  authorizes 
a  tax  of  nine  mills  and  the  taxing  body  levies  a  tax 
of  twelve  mills,^^^  and  where  a  board  of  equalization 

442,  56  L.  R.  A.  150,  88  N.  W.  523,  65  Neb.  93,  90  N.  W.  1005;  Union 
Pac.  Ry.  Co.  v.  Cheyenne  County,  64  Neb.  777,  90  N.  W.  917. 

388  Morton  v.  Carlin,  51  Neb.  202,  70  N.  W.  966. 

389  Touzalin  v.  City  of  Omaha,  2'o  Neb.  817,  41  N.  W.  796;  Chicago, 
B.  &  Q.  R,  Co.  V.  Cass  County,  51  Neb.  369,  70  N.  W.  955;  Rothwell 
V.  Knox  County,  62  Neb.  50,  86  N.  W.  903;  Grand  Island  &  M.  C.  R. 
Co.  V.  Dawes  County,  62  Neb.  44,  86  N.  W.  834. 

390  Earl  V.  Duras,  13  Neb.  234,  13  N.  W.  206. 

391  Morris  v.  Merrell,  44  Ne*).  423,  €2  N.  W.  865. 

392  Sioux  City  Bridge  Co.  v  Dikota  County,  61  Neb.  75,  84  N.  W. 
607. 

393  Chicago,  B.  &  W.  R.  C"  r  City  of  Nebraska  City,  53  Neb.  453, 
73  N.  W.  952. 

304  Grand  Island  &  W.  G  T  3o.  ▼.  Dawes  County,  62  Neb.  44,  86 
N.  W.  834. 


g  423  EQUITABLE  REMEDIES.  710 

fraudulently  and  without  notice  raises  an  assessment 
to  an  excessive  amount,^'^  equitable  relief  is  proper, 
especially  where  it  is  necessary  to  prevent  a  cloud  on 
title.  It  is  also  proper  when  no  tax  whatever  is  due.^®' 
An  injunction  will  issue  to  restrain  the  collection  of 
a  valid  tax  in  an  unlawful  manner.  Thus,  an  injunc- 
tion will  be  granted  to  restrain  the  sale  of  realty  for 
non-payment  of  a  tax  when  there  is  sufficient  personalty 
belonging  to  the  owner  and  subject  to  the  levy,  to  sat- 
isfy it.3^^ 

Personal  Property  Tax. — The  remedy  is  not  confined 
to  cases  of  void  taxation  of  real  property,  but  will  be 
granted  equally  to  restrain  the  collection  of  a  void  tax 
on  personal  property.^^^  The  reason  for  this  rule  is 
that  taxes  on  any  specific  personal  property  are  a  lien 
on  all  of  the  owner's  personalty.  Hence,  the  court  ar- 
gues, there  is  just  as  much  reason  for  an  injunction  in 
this  case  as  in  the  case  of  realty.  "It  would  be  a  vain 
thing  for  the  law  to  require  a  tax  to  be  paid,  the  pay- 
ment of  which  would  immediately  give  rise  to  an  action 
for  its  recovery."^'* 

Irregularities. — An  injunction  will  not  issue  to  re- 
strain the  collection  of  a  tax  because  of  mere  irregu- 
larities  in  the  proceedings,  unless  enforcement  would 
be  inequitable  and  unconscionable.^***^     In  cases  of  ir- 

893  South  Platte  Land  Co.  v.  Commissioners  of  Buffalo  Co.,  7  Neb. 
233. 

306  Earl  V.  Duras,  13  Neb.  234,  13  S.  W.  206. 
S97  Johnson  v.  Hahn,  4  Neb.  139. 

398  Rothwell  V.  Knox  County,  62  Neb,  50,  86  N,  W.  903;  Chicago, 
B,  &  Q.  E.  Co.  V.  Cass  County,  51  Neb.  369,  70  N,  W.  953. 

399  Eothwell  V.  Knox  County,  62  Neb,  50,  86  N.  W,  903, 

400  Spargur  v,  Eomine,  38  Neb.  736,  57  N.  W,  523;  Chicago,  B,  A 
W,  R.  Co.  V.  City  of  Nebraska  City,  S3  Neb.  453,  73  N.  W.  952;  Wilson 
y.  City  of  Auburn,  27  Neb,  435,  43  N,  W.  257;  Bellevue  Imp.  Co.  t. 
Village  of  Bellevue,  39  Neb.  876,  58  N.  W.  446. 


717  ENJOINING   TAXATION;    NEBRASKA.  I  423 

regularity  an  adequate  remedy  is  provided  at  law.    And 

especially  where  the  irregularity  is  the  result  of  the 

plaintiff's  own  act,  as  where  an  officer  of  a  corporation 

made  a  return  of  its  property  in  his  own  name  and  was 

assessed  for  it  in  consequence,  there  is  no  ground  for 

equitable  interference.^®^     An  error  of  a  tax-collector 

in  marking  an  assessment  paid  does  not  entitle  one 

who  purchases  in  reliance  upon  the  record  to  equitable 
relief.''®^ 

Laches. — A  suit  to  restrain  the  collection  of  a  tax 
need  not  be  brought  within  any  fixed  time.  Therefore 
the  question  as  to  whether  the  right  to  relief  is  barred 
by  laches  depends  upon  the  facts  in  each  particular 
case.^''^  Mere  delay  does  not  amount  to  laches,  espe- 
cially where  the  record  fails  to  show  that  the  plaintiff 
had  notice  of  the  levy.^°* 

Proof. — In  actions  to  restrain  the  collection  of  taxes, 
the  burden  is  upon  the  plaintiff  to  allege  and  prove  the 
invalidity.^®'* 

Tender. — Where  any  part  of  a  tax  or  assessment  is 
legal,  no  injunction  will  issue  to  restrain  the  collection 
of  the  void  part  unless  the  legal  part  has  been  paid  or 
tendered.^"*  Where,  however,  a  tax  is  wholly  void,  no 
tender  is  necessary.^®' 

401  McGillin  v.  Chase  County,  39  Neb.  422,  58  N.  W.  138. 

402  Philadelphia  Mtg.  &  Tr.  Co.  v.    City  of  Omaha,  63  Neb.  280, 
93  Am.  St.  Rep.  442,  88  N.  W.  523,  57  L.  E.  A.  150. 

403  Richards  v.  Hatfield,  40  Neb.  879,  59  N.  W.  777. 

404  Casey  v.  Burt  County,  59  Neb.  624,  81  N.  W.  851. 

405  Webster  v.  City  of  Lincoln,  50  Neb.  1,  69  N.  W.  394;  Parrotte 
▼.  City  of  Omaha,  61  Neb.  96,  84  N.  W.  €02. 

406  Burlington   &   M.  E.   E.   v.    Commissioners   of  York  County,   7 
Neb.  487. 

407  Sioux  City  Bridge  Co.  v.  Dakota  County,  61  Neb.  75,  84  N.  W. 
607. 


S  424  EQUITABLE  EEMEDIES.  718 

§  424.  Special  Assessments. — Although  the  statute  pro- 
hibits injunctions  against  taxation,  general  or  local,  un- 
less levied  for  an  illegal  or  unauthorized  purpose,  an 
injunction  will  issue  to  restrain  the  collection  of  an 
assessment  which  is  levied  without  authority.^"^^  The 
statute  authorizing  local  improvements  must  be  strictly 
complied  with,  and  if  any  of  the  substantial  require- 
ments, such  as  the  petition  of  the  owners  of  a  majority 
of  the  frontage,'"^^  or  the  publication  of  the  ordi- 
nance"*^"  are  not  fulfilled,  the  assessment  is  beyond  the 
authority  of  the  legislative  body,  and  an  injunction  will 
issue.  But  where  jurisdiction  is  acquired,  an  injunc- 
tion will  not  issue  because  of  mere  irregularities  in  the 
proceedings.^^  ^ 

An  injunction  will  not  be  refused  because  the  abut- 
ting owner  has  allowed  the  work  to  be  completed  unless 
it  appears,  (1)  that  he  knew  the  improvement  was  be- 
ing made,  (2)  that  he  knew  that  an  assessment  was 
contemplated,  (3)  that  he  knew  of  the  infirmity  or  de- 
fect, and  (4)  that  some  special  benefit  has  accrued  to 
his  property.**^^  Where  these  concur,  the  owner  must 
pay  what  is  justly  due  before  he  can  obtain  relief.^ ^^ 
lielief  will  not  be  granted  to  one  who,  by  covenants  in 
his  deed,  has  assumed  the  payment  of  the  assessment.^  ^^ 

408  Morris  V.  Merrel,  44  Neb,  423,  62  N.  W.  865. 

409  Harmon  v.  City  of  Omaha,  53  Neb.  164,  73  N.  W.  671;  Morse 
V.  City  of  Omaha  (Neb.),  93  N.  W.  734. 

410  Ives  V.  Irey,  51  Neb.  136,  70  N.  W.  961. 

411  Darst  V.  Griffin,  31  Neb.  668,  48  N.  W.  819;  Bemis  v.  Mc- 
Cloud  (Neb.),  97  N.  W.  828  (no  injunction  unless  some  jurisdictional 
fact  is  wanting  on  face  of  record). 

412  Harmon  v.  City  of  Omaha,  53  Neb.  164,  73  N.  W.  671.  For 
a  case  where  it  was  held  that  the  property  owner  was  barred  by  his 
acquiescence,  see  Eediek  v.  City  of  Omaha,  35  Neb.  125,  52  N.  W. 
847. 

413  Darst  V.  Griffin,  31  Neb.  668,  48  N.  W.  819. 

414  Eddy   V.   City   of   Omaha    (Neb.),   101   N.    W.    25. 


719     ENJOINING    TAXATION— NEVADA— NEW   JERSEY.     §  427 

§  425.  Nevada.— In  Nevada  it  is  held  "tliat  no  court 
of  equity  will  ever  allow  its  injunction  to  issue  to  re- 
strain the  collection  of  a  tax,  except  where  it  is  actu- 
ally necessary  to  protect  the  rights  of  citizens  who  have 
no  plain,  speedy  and  adequate  remedy  at  law.  It  must 
....  appear  that  the  enforcement  of  the  tax  would 
lead  to  a  multiplicity  of  suits,  or  produce  irreparable 
injury;  or  if  the  property  is  real  estate,  throw  a  cloud 
upon  the  title  of  the  complainant,  or  there  must  be 
some  allegation  of  fraud,  before  the  aid  of  a  court  of 
equity  can  be  invoked.  There  must  in  every  case  be 
some  special  circumstances  attending  a  threatened  in- 
jury of  this  kind,  which  distinguishes  it  from  a  com- 
mon trespass,  and  brings  the  case  under  some  recog- 
nized head  of  equity  jurisdiction  before  the  extraordi- 
nary and  preventive  remedy  of  injunction  can  be  in- 
voked."'*^ ^  Therefore,  the  collection  of  a  tax  on  per- 
sonal property  will  not  be  enjoined  even  though  the 
tax  has  been  once  paid.*^^ 

§  426.  New  Hampshire. — In  New  Hampshire,  an  ap- 
plication for  abatement  is  the  proper  remedy,  not  only 
when  the  assessment  is  made  upon  an  overvaluation, 
but  also  when  the  whole  assessment  is  illegal.  There 
being  this  adequate  remedy  at  law,  an  injunction  will 
not  ordinarily  be  granted  to  restrain  the  collection  of 
a  tax.*" 

§  427.  New  Jersey.— The  prevention  of  a  multiplicity 
of  suits  is  a  ground  for  the  injunction,  in  a  case  where 

415  WeUs,  Fargo  &  Co.  v.  Dayton,  11  Nev.  161. 

416  Conley  v.  Chedie,  6  Nev.  223. 

417  Rockingham  Ten  Cent  Savings  Bank  T.  Portsmouth,  52  N.  H. 
17;  Brown  v.  Concord,  56  N.  H.  375. 


ii  428,429  EQUITABLE   REMEDIES.  720 

the  invalidity  of  a  similar  tax  as  against  the  plaintiff 
has  already  been  established  at  law.'*^* 

Special  Assessments. — ^The  abutting  ownei'  is  entitled 
to  an  injunction  to  restrain  the  city  council  from  vol- 
untarily paying  a  contractor  for  imperfect  street  work, 
when  such  owner's  property  will  be  assessed  for  part 
of  the  cost  of  the  work.^^* 

§  428.  New  Mexico. — In  New  Mexico,  the  collection  of 
a  tax  unauthorized  by  law  will  be  restrained,  especially 
when  it  casts  a  cloud  on  title  to  real  estate.  Tax  deeds 
are  prima  facie  evidence  of  regularity  of  proceedings, 
and  therefore  cast  a  cloud  on  title.^^o  rpj^^  courts  will 
"arrest  any  attempt  to  enforce  the  collection  of  a  tax 
when  it  is  apparent  that  the  power  to  do  so  was  not 
originally  and  clearly  vested  in  the  taxing  power."*^^ 

§  429.  New  York. — In  New  York,  public  policy  for- 
bids the  granting  of  injunctions  in  tax  cases,  unless 
facts  are  shown  clearly  bringing  the  case  under  some 
acknowledged  head  of  equity  jurisdiction,  as  the  neces- 
sity for  the  intervention  of  the  court  to  prevent  a  mul- 
tiplicity of  suits  or  irreparable  damage,  where  there  is 
no  adequate  remedy  at  law,  or  to  remove  a  cloud  on 
title.^^^     It  is  sometimes  stated  that  the  injunction  will 

418  Paterson  etc.  E.  E.  v.  Jersey  City,  9  N.  J.  Eq.  434;  see  1  Pom. 
Eq.  Jur.,  §  253,  note. 

410  Lodor  V.  McGovern,  48  N.  J.  Eq.  275,  27  Am.  St.  Eep.  446,  22 
Atl.  199.  That  a  slight  and  harmless  variance  in  the  performance  from 
the  precise  terms  of  the  contract  is  not  a  ground  for  restraining  such 
payment,  see  McCartan  v.  Inhabitants  of  City  of  Trenton,  57  N.  J. 
Eq.  571,  41  Atl.  830. 

420  Town  of  Albuquerque  v.  Zeiger,  5  N.  M.  674,  27  Pac.  315. 

421  Poe  V.  Howell  (N.  M.),  67  Pac.  62. 

422  Mercantile  Nat.  Bank  v.  City  of  New  York,  27  Misc.  Eep.  32, 
57  N.  Y,  Supp.  254;  Susquehanna  Bank  v.  Supervisors  of  Broome  Co., 
25  N.  Y.  312;  Western  E.  E.  Co.  ▼.  Nolan,  48  N.  Y.  514;  Mutual  Ben. 


121  ENJOINING  TAXATION;  NEW  YORK.  §  429 

bp  granted  only  under  circumstances  of  great  necessity 
to  prevent  irreparable  damage.^-^  The  courts  have  ad- 
hered sti'ictly  to  this  rule,  and  accordingly  there  are 
few  cases  where  the  injunction  will  be  granted.  It  will 
not  be  granted  on  the  ground  of  mere  unconstitution- 
ality or  illegality,  unless  the  case  is  brought  under 
some  recognized  head  of  equity.^-^  Ordinarily,  when 
a  statute  is  unconstitutional,  the  sheriff  is  a  mere  tres- 
passer when  he  attempts  to  levy  upon  the  tax-payer's 
property,  and  hence  the  remedy  at  law  is  amply  suffi- 
cient. And  the  fact  that  the  remedy  at  law  has  been 
lost  by  laches  gives  the  court  no  jurisdiction."*-^  Gen- 
erally, when  an  assessment  is  excessive  or  illegal,  there 
is  an  adequate  remedy  at  law,  and  hence  injunctive 
relief  will  be  refused.^^®  Thus,  a  national  bank  cannot 
enjoin  the  collection  of  a  tax  on  the  ground  that  its 
property  is  assessed  at  a  higher  rate  than  other  prop- 
erty within  the  state,  in  violation  of  the  federal  stat- 
ute, for  an  ample  remedy  is  provided  by  the  state  stat- 
ute.^^^  And  a  remainder-man,  for  the  same  reason^, 
cannot  enjoin  a  sale  for  taxes  left  unpaid  by  the  life 
tenant.^2®     A  broader  rule  has  been  laid  down  in  one 

Life  Ins.   Co.   v.   Supervisors,  2   Abb.  Pr.,  N.   S.,   233;   Mayor   etc.   v. 
Meserole,  26  Wend.  132;  Ileywood  v.  City  of  Buffalo,  14  N.  Y,  534. 

423  Rome  W.  &  O.  R.  R.  Co.  v.  Smith,  39  Hun,  332;  Brass  v.  Rath- 
bone,  8  App.  Div.  78,  40  N.  Y.  Supp.  466. 

424  United  Lines  Tel.  Co.  v.  Grant,  137  N,  Y.  7,  32  N.  E.  1005; 
Postal  Tel.  Cable  Co.  v.  Grant,  11  N.  Y.  Supp.  323,  33  N.  Y.  St.  Rep. 
997. 

425  United  Lines  Tel.  Co.  v.  Grant,  €3  Hun,  634,  18  N,  Y.  Supp. 
534;  Mercantile  Nat.  Bank  v.  City  of  New  York,  27  Misc.  Rep.  32,  57 
N.  Y.  Supp.  254. 

426  Mercantile  Nat.  Bank  v.  Mayor  etc.  of  New  York,  172  N.  Y. 
35,  64  N.  E.  756. 

427  Mercantile  Nat.  Bank  v.  City  of  New  York,  27  Misc.  Rep.  32, 
57  N.  Y.  Supp.  254. 

428  Sage  V.  City  of  r^  -ersville,  43  App.  Div.  245,  60  N.  Y.  Supp. 
T91. 

Equitable  L,       dies,  Vol.  1—46 


S  430  EQUITABLE  REMEDIES.  722 

recent  lower  court  case,  but  it  is  at  least  doubtful  if  it 
will  be  followed.  The  plaintiff  was  assessed  upon  the 
same  personal  property  in  two  boroughs,  io  one  of 
which  the  property  had  never  been.  The  court  held 
that  equity  had  jurisdiction  to  correct  a  mistake  by 
which  double  liability  is  incurred  where  such  mistake 
depends  upon  proof  of  facts  outside  the  record,  and 
where,  in  consequence  of  such  mistake,  an  obligation 
that  has  already  been  paid  and  discharged  still  appears 
of  record  as  a  valid  claim.  The  case  is  brought  within 
the  general  rule  by  a  holding  that  it  is  within  the  ju- 
risdiction of  equity  to  restrain  the  enforcement  of  un- 
conscionable demands.^-^  It  would  seem  that  this  rule 
is  too  broad,  and  that  if  adhered  to  it  would  open  the 
door  to  injunctive  relief  in  almost  every  case. 

§  430.  Cloud  on  Title. — It  is  one  of  the  recognized  prin- 
ciples of  equity  jurisdiction  that  relief  will  be  granted 
to  prevent  a  cloud  on  title  to  real  estate.  Therefore, 
whenever  an  illegal  tax  casts  such  a  cloud,  the  court 
will  interfere  by  injunction.'*^"  Not  every  tax  v\hich  is 
declared  a  lien  on  real  estate  casts  such  a  cloud,  how- 
ever. In  order  to  warrant  relief,  it  must  appear  that 
the  proceedings  are  regular  on  their  face  and  invalid 
only  because  of  defects  dehors  the  record,  and  also  that 
the  defect  will  not  necessarily  appear  in  proceedings 
to  enforce  the  lien.^^^  An  assessment  levied  without 
authority  is  held  not  to  be  even  an  apparent  lien.^^^ 

429  Jackson  v.  City  of  New  York,  62  App.  Div.  46,  70  N.  Y.  Supp. 
877. 

4:50  Mutual  Ben.  Life  Ins.  Co.  v.  Supervisors,  2  Abb.  Pr.,  N.  S., 
233. 

431  Alvord  V.  City  or  Syracuse,  163  N.  Y.  158,  57  N.  E.  310;  Trow- 
bridge V.  Horan,  78  N.  Y.  439;  Van  Eensselaer  v.  Kidd,  4  Barb.  17; 
Van  Doren  v.  Mayor,  9  Paige,  388. 

432  Heywood  v.  City  of  Buffalo,  14  N.  Y.  534. 


723  ENJOINING  TAXATION;  NEW  YORK.  §  431 

But  where  a  cloud  is  cast,  the  courts  will  interfere,  as 
in  case  of  a  threatened  sale  for  non-payment  of  an  il- 
legal tax  regular  on  its  face.^^^ 

§  431.  Special  Assessments.— As  a  general  rule,  an  in- 
junction will  issue  when  an  illegal  special  assessment, 
valid  on  its  face,  casts  a  cloud  on  the  title  of  real  estate. 
Thus,  it  is  proper  where  the  assessment  is  invalid  be- 
cause the  assessors  adopt  the  wrong  rule  in  apportion- 
ment ;^^^  or  when  land  benefited  by  an  improvement  is 
excluded  from  the  assessment  district,  for  there  is  an 
illegality  not  apparent  on  the  face  which  creates  a 
cloud  on  title  ;^^^  but  it  will  be  presumed  that  the  as- 
sessment is  apportioned  according  to  benefits  until  the 
contrary  is  shown.^^^  The  mere  fact  that  the  assess- 
ment is  in  excess  of  benefits,  where  there  is  no  claim 
that  any  land  benefited  is  not  assessed  nor  that  there 
was  any  fraud  in  making  the  assessment,  will  not  war- 
rant an   injunction.'*^'^ 

Where,  however,  the  proceedings  are  void  on  their 
face,  an  injunction  will  be  refused.^^^  Thus,  where  a 
resolution  fails  to  specify  which  of  two  plans  on  file 
is  to  be  followed,  the  illegality  is  apparent  and  no  in- 
junction will  issue.^^® 

433  Litchfield  v.  City  of  Brooklyn,  13  Misc.  Eep.  693,  34  N.  Y.  Supp. 
1090. 

434  Clark  V.  Village  of  Dunkirk,  12  Hun,  181;  affirmed,  75  N.  Y. 
612. 

435  Copcutt  V.  City  of  Yonkers,  83  Hun,  178,  31  N.  Y.  Supp,  659; 
Providence  Retreat  v.  City  of  Buffalo,  29  App.  Div.  160,  51  N.  Y. 
Snpp.  654;  affirmed,  31  App.  Div.  635,  53  N.  Y.  Supp.  1113;  Hasaan 
V.  City  of  Rochester,  67  N.  Y.  528. 

436  Denise  v.  Village  of  Fairport,  11  Misc.  Eep.  199,  32  N.  Y.  Supp. 
97. 

437  Hoffield  V.  City  of  Buffalo,  130  N.  Y.  387,  29  N.  E.  747. 

438  Mayor  etc.  of  Brooklyn  v.  Meserole,  26  Wend.  132;  Van  Doren 
V.  Mayor,  9  Paige  Ch.  388. 

439  Copcutt  V.  City  of  Yonkers,  83  Hun,  178,  31  N.  Y.  Supp.  659. 


i  433  EQUITABLE  REMEDIES.  724 

Where  statute  provides  an  adequate  remedy  at  law 
for  an  illegal  assessment,  an  injunction  will  be  re>- 
fused.^^°  By  section  897  of  the  Consolidation  Act 
(New  York  City)  it  is  provided:  "No  suit  or  action 
in  the  nature  of  a  bill  in  equity  or  otherwise  shall  be 
commenced  for  the  vacation  of  any  assessment  in  said 
city,  or  to  remove  a  cloud  upon  title,  but  owners  of 
property  shall  be  confined  to  their  remedies  in  such 
cases  to  the  proceedings  under  this  title. "^'^^  Where 
this  applies,  it  has  been  held  that  no  injunction  can 
issue  to  prevent  the  sale  of  property  for  a  void  assess- 
ment, for  to  allow  it  would  in  substance  be  to  vacate 
the  assessment. '^^2 

When  an  assessment  is  void,  it  is  not  necessary  to 
make  any  tender  as  a  condition  to  injunctive  relief.'*^^ 

§  432.  North  Carolina. — It  is  provided  by  statute  in 
North  Carolina  that  injunctions  shall  not  be  issued 
to  restrain  the  collection  of  any  tax  or  the  sale  of  any 
property  for  the  non-payment  of  any  tax,  except  such 
tax  as  has  been  levied  or  assessed  for  an  illegal  or  un- 
authorized purpose,  or  except  the  tax  be  illegal  or  in- 
valid, or  the  assessment  be  illegal  and  invalid.^^*  Thus, 
an  injunction  will  not  be  granted  merely  because  the 
defendant  was  not  the  lawful  tax-collector  for  the 
year.*^^  On  the  other  hand,  when  the  tax  is  illegally 
levied,  the  injunction  will  issue.^*^     In  such  a  case, 

440  Schulz  V.  City  of  Albany,  42  App.  Div.  437,  59  N.  Y.  Supp.  235; 
affirming  27  Misc.  Eep.  51,  57  N.  Y.  Supp.  963. 

441  Laws    1882,  c.  410. 

442  Scudder  v.  Mayor  etc.  of  New  York,  146  N.  Y.  245,  40  N,  E. 
734;  affirming,  79  Hun,  613,  29  N.  Y.  Supp.  422;  Sixth  Ave.  E.  Co. 
V.  City  of  New  York,  63  Hun,  271,  17  N.  Y.  Supp.  903. 

443  Hassan  v.  City  of  Eochester,  67  N.  Y.  528. 

444  Acts  of  1895,  c.  119,  §  76. 

445  Mf-Donald  v.  Teague,  119  N.  C.  604,  26  S.  E.  158. 

448  (iraves  r.  Moore  Co.  Commissioners,  135  N.  C.  49,  47  S.  E.  134| 


725  ENJOINING  TAXATION;  NORTH  DAKOTA.     §§  433,434 

any  tax-payer  may  bring  the  suit  in  his  own  behalf  only, 
or  on  behalf  of  all  others  similarly  situated.^^'^ 

The  injunction  will  not  be  granted  when  there  is  an 
adequate  remedy  at  law.  The  statute  provides  that  if 
any  person  claiming  that  any  tax  is  illegal  or  excessive 
pays  the  same,  and,  within  thirty  days  after  payment, 
makes  a  written  demand  for  a  repayment  thereof,  and 
the  same  is  not  refunded  within  ninety  days  thereafter, 
he  may  sue  to  recover  it.^^^  This  provides  an  adequate 
remedy  at  law  for  an  illegal  or  excessive  personal  tax, 
at  least,  and  hence  in  such  a  case  an  injunction  will 
be  refused.^^^ 

Tender. — An  injunction  will  issue  to  restrain  the  col- 
lection of  an  illegal  excess  of  tax,  but  as  a  preliminary 
condition  of  relief  the  plaintiff  must  tender  the  amount 
legally  due.^^*^ 

§  433.  Special  Assessments. — An  injunction  will  not 
issue  to  restrain  the  collection  of  a  special  assessment 
when  the  act  provides  an  adequate  remedy  at  law  by 
suit  to  recover  back  after  payment.*^^ 

§  434.  North  Dakota — In  North  Dakota,  it  is  held 
that  courts  of  equity  should  interfere  to  restrain  the 
collection  of  a  tax,  only  where  the  property  sought  to 
be  taxed  is  exempt,  or  where  the  tax  itself  is  not  war- 
ranted by  law,  or  the  persons  assuming  to  assess  and 

Purnell  v.  Page,  133  N.  C.  125,  45  S.  E.  534;  Moore  v.  Sugg,  112  N. 
C.  233,  17  S.  E.  72. 

447  Moore  v.  Sugg,  112  N.  C.  233,  17  S.  E.  72. 

448  Laws  1887,  c.  137,  §  84. 

449  Hall  V.  City  of  Fayetteville,  115  N.  C.  281,  20  S.  E.  373.  The 
same  has  been  held  as  to  a  tax  fraudulently  assessed  on  realty:  Wil- 
son V.  Green,  135  N.  C.  343,  47  S.  E.  469. 

450  London  v.  City  of  Wilmington,  78  N.  C.  109. 

451  Hilliard  v.  City  of  Asheville,  118  N.  C.  845,  24  S.  E.  738. 


I  435  EQUITABLE  REMEDIES,  726 

levy  the  same  are  without  authority  to  do  so,  or  where 
the  proper  taxing  officials  have  acted  fraudulently ;  and 
in  addition,  plaintiff  must  bring  himself  within  some 
recognized  head  of  equity  jurisdiction.  As  a  condition 
to  relief,  the  applicant  must  pay  or  tender  the  amount 
of  taxes  properly  chargeable  against  his  property.^^^ 
An  injunction  will  not  issue  against  the  collection  of 
taxes  on  personal  property  unless  plaintiff  can  by  proof 
of  special  circumstances  show  that  the  remedy  at  law 
is  inadequate.^^^  A  tax-payer  cannot  enjoin  a  tax  levy 
on  the  ground  that  it  is  to  be  used  in  part  in  the  pay- 
ment of  an  illegal  claim.^^^ 

§  435.  Ohio — The  Revised  Statutes  of  Ohio  are  very 
explicit  as  to  injunctions  in  tax  cases.  "Courts  of  com- 
mon pleas  and  superior  courts  shall  have  jurisdiction 
to  enjoin  the  illegal  levy  of  taxes  and  assessments,  or 
the  collection  of  either  ....  without  regard  to  the 
amount  thereof,  but  no  recovery  shall  be  had  unless  the 
action  be  brought  within  one  year  after  the  taxes  or  as- 
sessments are  collected."'*^^  "Actions  to  enjoin  the  il- 
legal levy  of  taxes  and  assessments  must  be  brought 
against  the  corporation  or  person  for  whose  use  or  bene- 
fit the  levy  is  made;  and  if  the  levy  would  go  upon  the 
county  duplicate  the  county  auditor  must  be  joined  in 
the  action."^^®  "Actions  to  enjoin  the  collection  of 
taxes  and  assessments  must  be  brought  against  the  of- 

4  52  Farrington  v.  Kew  England  Investment  Co.,  1  N.  D.  102,  45 
N.  W.  191;  Douglas  v.  City  of  Fargo  (N.  D.),  101  N.  W.  919. 

453  Scliaifner  v.  Young,  10  N.  D.  245,  86  N.  W.  733;  Minneapolis 
St.  P.  &  S.  S.  M.  E.  Co.  V.  Dickey  County,  11  N.  D.  107,  90  N.  W. 
260. 

454  Torgrinson  v.  Norwich  School  Dist.  No.  31  (N.  D.),  103  N.  W. 
414. 

455  Ohio  Rev.  Stats.,  §  0848. 

456  Ohio  Rev.  Stats.,  §  5849. 


727  ENJOINING    TAXATION;    OHIO.  S  435 

ficer  whose  duty  it  is  to  collect  the  same."^^^  "If  the 
plaintiff  in  an  action  to  enjoin  the  collection  of  taxes 
or  assessments  admit  a  part  thereof  to  have  been  legally 
levied,  he  must  first  pay  or  tender  the  sum  admitted  to 
be  due ;  if  an  order  of  injunction  be  allowed,  an  under- 
taking must  be  given  as  in  other  cases;  and  the  injunc- 
tion shall  be  a  justification  of  the  olficer  charged  with 
the  collection  of  such  taxes  or  assessments  for  not  col- 
lecting the  same."^^^ 

"When  the  power  to  tax  in  any  particular  case  is 
challenged,  the  citizen  has  the  right  to  be  heard  in 
court  as  to  the  legality  of  the  tax;  but  when  the  power 
to  tax  is  conceded,  and  the  complaint  is  only  as  to  the 
valuation,  a  valuation  made  in  good  faith,  and  accord- 
ing to  the  best  judgment  of  the  taxing  offlcer,  will  not 
be  disturbed  by  the  courts  in  the  absence  of  gross  mis- 
take."^^^  Thus,  an  injunction  will  be  granted  at  suit 
of  a  tax-payer  when  the  tax  is  levied  without  authority 
of  law,^^*^  as  where  levied  for  an  illegal  object.  It  will 
also  be  granted  to  restrain  the  sale  of  realty  for  an  il- 
legal tax,  when  such  sale  would  cast  a  cloud  on  title.*^^ 
It  has  been  held  that  an  injunction  will  not  issue  to  re- 
strain the  collection  of  a  tax  when  the  action  of  the  col- 
lecting officer  amounts  to  a  mere  trespass  for  which 
there  is  an  adequate  remedy  at  law;  and  the  mere  fact 
that  a  number  of  persons  are  in  the  same  condition  as 
the  plaintiff  is  not  sufficient  to  warrant  the  relief."***^ 

An  injunction  against  the  collection  of  a  tax  will  be 
granted  only  at  the  suit  of  a  tax-payer.     The  same  de- 

457  Ohio  Eev,  Stats.,  §  5850 

458  Ohio  Eev.  Stats.,   §  5851. 

409  Hagerty  v.  Huddleston,  60  Ohio  St.  149,  53  N.  E.  960. 

460  Moss  V.  Board  of  Education,  58  Ohio  St.  354,  SO  N.  E.  921;  Jonea 
V.  Davis,  35  Ohio  St.  474. 

461  Burnet  v.  Cincinnati,  3  Ohio,  73,  17  Am.  Dec.  582, 
4C2  McCoy  V.  Chillicothe,  3  Ohio,  370,  17  Am.  Dee.  607. 


i  436  EQUITABLE  EEMEDIES.  728 

gree  of  interest  is  requisite  as  in  all  other  cases  where 
the  extraordinary  aid  of  equity  is  invoked.  Thus,  the 
collection  of  a  school  tax  cannot  be  enjoined  at  the  suit 
of  a  board  of  education,  because  the  board,  as  such,  is 
not  a  tax-payer.^ ^^ 

The  plaintiff  seeking  the  aid  of  a  court  of  equity 
must  come  with  clean  hands;  therefore  an  injunction 
will  be  refused  to  one  who,  for  the  purpose  of  evading 
taxation  upon  certain  securities  at  the  place  of  his 
residence,  has  made  a  pretended  transfer  thereof  by  an 
instrument  in  writing,  but  retains  the  full  and  actual 
control  of  the  property.^^* 

§  436.  Special  Assessments. — An  injunction  will  issue 
to  restrain  the  collection  of  a  special  assessment  levied 
without  authority  of  law.^*^^  Thus,  it  will  issue  when 
the  statute  authorizing  the  w^ork  is  unconstitutional;^'^^ 
or  when  some  jurisdictional  requirement  is  omitted.^ °^ 

It  is  no  ground  for  an  injunction  that  the  improve- 
ment has  not  been  constructed  according  to  plans  and 
specifications;^''^  nor  that  the  proceedings  do  not  show 
affirmatively  that  benefits  were  considered,  when  the 
land,  as  a  matter  of  fact,  has  been  benefited.^°^ 

A  petition  for  an  injunction  is  premature  when  filed 
before    steps    have    been    taken    to    make    the    assess- 

4  63  Board  of  Education  v.  Guy,  64  Ohio  St,  434,  60  N.  E.  573. 

464  Sisler  v.  Foster  (Ohio),  74  N.  £.639. 
4G5  Jonas  V.  Cincinnati,  18  Ohio,  318. 

4  00  Lewis  V.  Syninies,  61  Ohio  St.  471,  76  Am.  St.  Eep.  428,  56  N. 
E.  194. 

467  Joyce  V.  Baron,  67  Ohio  St.  2G4,  65  N.  E.  1001. 

465  Putnam  Co.  Commissioners  v.  Krauss,  53  Ohio  St.  628,  42  N.  E. 
S31. 

409  Schroder  v.  Overman,  61  Ohio  St.  1,  55  N.  E.  158,  47  L.  E,  A. 
156. 


729  ENJOINING  TAXATION;  OKLAHOMA.  fi  437 

raent  i*^*'  on  the  other  hajid,  it  is  too  late  when  not  filed 
until  after  the  assessment  has  been  paid  voluntarily.*'^ 
In  the  earlier  cases  it  was  held  that  an  injunction 
will  be  refused,  although  the  proceedings  are  void, 
when  the  landowner  knowingly  stands  by  and  allows 
the  improvement  to  be  made  without  objection  ;^'2  b^t 
the  rule  does  not  apply  when  he  has  no  actual  notice  of 
the  improvement  and  is  not  guilty  of  any  want  of  dili- 
gence in  asserting  his  rights.'*'^^  It  has  been  held  in  a 
recent  case  that  it  is  not  necessary  to  take  effective 
measures  to  prevent  the  expenditure;  that  the  land- 
owner is  not  obliged  to  take  any  steps  whatever  until 
an  attempt  is  made  to  assess  his  property.*'^* 

§  437.  Oklahoma — In  Oklahoma  it  is  provided  by  stat- 
ute that  "an  injunction  may  be  granted  to  enjoin  the 
illegal  levy  of  any  tax,  charge  or  assessment,  or  the 
collection  of  any  illegal  tax,  charge  or  assessment,  or 
any  proceeding  to  enforce  the  same,  and  any  number 
of  persons,  whose  property  is  affected  by  a  tax  or  assess- 
ment so  levied  may  unite  in  the  petition  filed  to  obtain 
such  injunction."*^^  In  construing  this  provision,  the 
supreme  court  of  the  territory  has  held  that  it  enlarges 
the  remedy  by  injunction  in  tax  cases,  and  clearly  gives 
the  complaining  party  a  right  to  injunction  in  every 
case  when  the  tax  or  assessment  levied  against  him  is 

470  Lutman  v.  Lake  Shore  &  M,  S.  Ey.  Co.,  56  Ohio  St,  433,  47  N, 
E.  248. 

471  State  V.  Bader,  56  Ohio  St.  718,  47  N.  E.  564. 

472  Kellogg  V.  Ely,  15  Ohio  St.  64;   Commissioners  of  Putnam  Co. 
V.  Krauss,  53  Ohio  St.  628,  42  N.  E.  831. 

473  Teegarden  v.  Davis,  36  Ohio  St.  601. 

474  Lewis  V.  Symmes,  61  Ohio  St.  471,  76  Am.  St.  Eep.  428,  56  N. 
E.  194. 

475  Okla,  Stats.  1893,  §  4143. 


{  437  EQUITABLE  REMEDIES.  730 

illegal.'*^®  Thus  the  question  to  be  decided  in  most  of 
the  cases  is  simply  whether  the  tax  is  illegal. 

Under  the  provision  of  the  statute  that  any  proceed- 
ing to  enforce  an  illegal  tax  may  be  enjoined,  it  has 
been  held  that  an  injunction  will  issue  to  restrain  a 
county  treasurer  from  issuing  a  warrant  to  the  sheriff 
to  levy  on  the  tax-payer's  property  to  satisfy  an  illegal 
tax.^^^ 

Taxes  have  also  been  held  illegal  when  the  rate  is 
higher  than  necessary  for  the  purposes  for  which  the 
tax  is  levied  ;^'^^  and  where  a  township  assessor  has  at- 
tempted to  assess  property  within  the  limits  of  an  in- 
corporated town."*'^  Hence  in  such  cases  an  injunction 
will  be  granted. 

An  injunction  will  not  be  granted,  however,  upon  a 
mere  allegation  that  municipal  authorities  intend  to 
misapply  the  funds  ;^'^''  nor  where  a  party  who  claims 
his  property  is  exempt  because  assessed  in  another  state 
fails  to  make  oath  to  the  fact  as  required  by  law.'*^^ 

476  Bardrick  v.  Dillon,  7  Okla.  535,  54  Pac.  785.  It  is  difficult  to 
reconcile  this  statement  with  language  used  by  the  same  court  in  a 
decision  filed  the  same  day.  Thus,  in  Wilson  v.  Wiggins,  7  Okla. 
517,  54  Pac.  716,  the  court  says  expressly  that  the  statute  does  not 
substantially  enlarge  the  remedy,  and  that  such  relief  cannot  be  in- 
voked unless  the  party  brings  himself  within  the  general  principles 
of  equitable  relief,  in  addition  to  establishing  the  illegality  com- 
plained of.  Apparently  the  only  effect  of  this  holding  is  that  an 
injunction  will  not  be  granted  because  of  a  mere  irregularity  not 
making  the  tax  illegal,  unless  the  case  is  brought  under  some  equi- 
table head;  and  it  will  be  noticed  that  such  a  ease  does  not  come 
within  the  terms  of  the  statute.  The  rule  as  embodied  in  the  text 
seems  to  be  tho  true  one.  Wallace  v.  Bullen,  6  Okla.  17,  52  Pac.  954, 
tends  to  sustain  the  text. 

477  Gray  v.  Stiles,  6  Okla.  455,  49  Pac.  1083. 

478  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Wiggins,  5  Okla.  477,  49  Pac. 
1019. 

470  Durlinm  v.  Linrlcrman,  10  Okla.  o70,  64  Pac.  15. 
4R0  p.ordrink  V.  Di'lon,  7  Okla.  535,  54  Pac.  785. 
4S1    Vi'son  V.  Wi,:rsins,  7  Okla.  517,  54  Pac.  716. 


731  KNJOlJMIiN'G    TAXATION;    OKLAHOxMA.  §  438 

Irregularities. — While  the  injunction  will  be  granted 
with  great  freedom  when  the  tax  is  illegal,  it  will  not 
be  granted  because  of  mere  irregularities  in  the  pro- 
ceedings which  do  not  injure  the  substantial  rights  of 
the  citizen  or  tax-pajer.'*^^  Thus,  an  injunction  will 
not  be  granted  merely  because  a  tax  is  levied  a  few  days 
too  late.'*^^ 

Parties  Plaintiff. — It  will  be  noticed  that  the  statute 
provides  that  any  number  of  persons  whose  property 
is  affected  by  an  illegal  assessment  may  join  in  an  ac- 
tion for  an  injunction.  This  statute,  however,  does 
not  authorize  one  tax-payer  to  maintain  the  action  for 
the  benefit  of  all.'*^'*  It  applies  only  where  a  tax  is  il- 
legal in  the  abstract,  illegal  in  and  of  itself,  illegal  as 
applied  to  every  owner  of  taxable  property  in  the  county 
or  district.^^^  But  when  the  tax,  as  a  tax,  is  valid,  but 
becomes  illegal  only  as  applied  to  particular  persons 
or  property,  or  to  particular  cases,  as  where  there  is  an 
over-assessment,  then  each  person  severally  interested 
must  sue  alone.^^* 

§  438.  Increase  of  Assessment. — Many  of  the  cases  have 
grown  out  of  the  action  of  boards  of  equalization  in 
raising  assessments.  It  has  been  held  that  the  terri- 
torial board  of  equalization  has  no  power  to  raise  all 
of  the  assessments  in  the  territory,  that  if  it  attempts 
to  do  so  its  action  is  illegal,  and  that  therefore  an  in- 

452  Sweet  V.  Boyd,  6  Okla.  699,  52  Pae.  939;  Boyd  v.  Wiggins,  7 
Okla.  85,  54  Pac.  411. 

453  Sharps  v.  Engle,  2  Okla.  624,  39  Pac.  384. 

484  Stiles  V.  City  of  Guthrie,  3  Okla.  26,  41  Pac.  383;  Caffrey  v. 
Overholser,  8  Okla.  202,  57  Pac.  205;  Martin  v.  Clay,  8  Okla.  46,  56 
Pac.   715. 

4S5  Bardriek  v.  Dillon,  7  Okla.  535,  54  Pac.  785. 

4Sfi  Bnrdriok  v.  Dillon,  7  Okla.  535,  54  Pac.  785;  Weber  v.  Dillon, 
7  Okla.  568,  54  Pac.  894. 


§  439  EQUITABLE  EEMEDIES.  732 

junction  will  issue.^^"^  And  when  the  tax-payer  makes 
a  return  of  his  property  at  the  true  cash  value,  as  re- 
quired by  statute,  he  may  enjoin  the  collection  of  any 
increase  ordered  by  a  board  of  equalization.^^^  It  is 
held  that  such  a  board  is  not  vested  with  judicial 
powers,  and  that  therefore  w^hen  property  is  over-valued 
to  such  an  extent  as  to  raise  the  presumption  that  it 
was  over-estimated  from  design,  a  court  of  equity  will 
determine  the  true  valuation,  and  will  enjoin  the  col- 
lection of  the  illegal  excess.^ ^^  And  the  injunction  will 
be  granted  whether  or  not  the  tax-payer  appeared  be- 
fore the  board  to  protest  against  its  action.*'^''  But  the 
injunction  will  not  be  granted  unless  it  appears  that 
the  increased  assessment  is  greater  than  the  actual  cash 
value,  for  unless  it  is,  the  assessment  is  not  illegal;*''^ 
nor  will  it  be  granted  unless  the  j)laintiff  has  listed  and 
returned  the  property  to  the  assessor  at  its  actual  cash 
value,  as  required  by  statute.^^^ 

§  439.  Tender. — It  is  provided  by  statute  that  in  all 
actions  to  enjoin  the  collection  of  a  tax,  ''the  true  and 
just  amount  of  taxes  due  upon  such  proi)erty  or  by  such 
person  if  in  dispute,  must  be  ascertained  and  paid  be- 
fore the  judgment  prayed  for."^^^  But  further  than 
this,  it  is  held  that  before  the  plaintiffs  can  be  heard 
to  question  in  a  court  of  equity  the  legality  of  any  por- 
tion of  the  taxes,  they  must  pay,  or  oiier  to  pay,  that 

4  87  Gray  v.  Stiles,  6  Okla.  455,  49  Pae.  1083,  overruling  VPallace  v. 
Bullen,  6  Okla.  17,  52  Pac.  954. 

4SS  Caflfrey  v.  Overholser,  8  Okla.  202,  57  Pae.  206;  Cranmer  v. 
Williamson,  8  Okla.  683,  59  Pac.  249. 

489  Bardrick  v.  Dillon,  7  Okla.  535,  54  Pac.  785. 

490  Wiggins  V.  A.  T.  &.  S.  F.  R.  Co.,  9  Okla.  118,  59  Pac.  248. 

491  Streight  v.  Durham,  10  Okla.  361,  61  Pac.  1096;  Rose  v.  Dur- 
ham, 10  Okla.  373,  61  Pae.  1100. 

492  Alva  State  Bank  v.  Renfrew,  10  Okla.  26,  62  Pac.  285. 

493  Okla.  Stats.    1893,  §  5671. 


733  ENJOINING    TAXATION;    OREGON.  §  440 

part  over  which  there  is  no  dispute,  if  any  there  be, 
and  at  least  offer  in  their  petition  to  pay  such  portion 
as  the  court  may  determine  to  be  legal  and  just.'*^^  It 
is  suggested  in  one  case  that  the  reason  for  this  latter 
requirement  is  that  as  the  court  cannot  otherwise  com- 
pel the  payment  of  the  tax  found  to  be  legal  the  offer 
in  the  petition  to  pay  whatever  is  found  to  be  due  must 
be  made,  so  that  full  justice  may  be  done.*^^  But 
where  it  is  clear  that  a  part  of  the  tax  is  legal,  an  ac- 
tual tender  must  be  made  before  suit.  An  averment 
of  readiness  and  willingness  to  pay  is  not  sufficient.^^® 
Thus,  where  an  injunction  is  sought  on  the  ground  of 
excess,  tender  must  be  made  of  the  amount  legally 
due.''" 

§  440.  Oregon — In  Oregon,  the  considerations  which 
inliuence  a  court  of  equity  to  restrain  the  collection  of 
a  tax  are  confined  to  cases  where  the  tax  itself  is  not 
authorized,  or,  if  it  is,  where  the  tax  is  assessed  upon 
property  not  subject  to  taxation,  or  where  the  persons 
imposing  it  are  without  authority,  or  are  acting  fraud- 
ulently. In  addition,  the  plaintiff  must  bring  his  case 
within  some  of  the  recognized  principles  of  equity.^^® 

An  injunction  will  not  be  granted  because  of  a  mere 
irregularity  in  the  assessment.  Thus,  it  is  no  ground 
for  an  injunction  that  the  property  is  assessed  in  the 

494  Colling  V.  Green,  10  Okla,  244,  62  Pac.  813;  Halff  v.  Green,  10 
Okla,  338,  62  Pac.  816;  Eussell  v.  Green,  10  Okla.  340,  62  Pac.  817; 
Mclntyre  v.  Williamson    (Okla.),  54  Pac.   928. 

495  Lasater  v.  Green,  10  Okla.  335,  62  Pac.  816. 

496  State  Nat.  Bank  v.  Carson  (Okla.),  50  Pac.  990. 

497  Mclntyre  v.  Williamson  (Okla.),  54  Pac.  928. 

498  Welch  V.  Clatsop  County,  24  Or.  452,  33  Pac.  934;  Southern 
Or.  Co.  V.  Coos  County,  39  Or.  185,  64  Pac.  646;  Goodnough  v.  Powell, 
23  Or.  525,  32  Pac.  396;  Portland  Hibernian  Ben.  Soc.  v.  Kelly,  28 
Or.  173,  42  Pac.  3,  52  Am.  St.  Eep.  769;  Alliance  Trust  Co.  v.  Multno- 
mah County,  38  Or.  433,  63  Pac.  498,  30  L.  E.  A.  167. 


S  440  EQUITABLE  KEMEDIES.  734 

wrong  name.^^^  And  the  mere  illegality  of  an  order 
of  a  county  court  in  directing  penalties  to  be  added  to 
unpaid  taxes  is  no  ground  for  such  relief  when  the 
sheriff  has  no  authority  to  enforce  collection  and  has 
made  no  attempt  to  do  so.^""  For  the  same  reason  that 
it  is  denied  in  this  case,  it  will  be  denied  when  it  is 
sought  to  restrain  an  extension  of  a  tax  on  the  tax- 
books,  unless  it  is  wholly  unauthorized  and  void  in  all 
its  parts.^°^  In  none  of  these  actions,  however,  will  the 
motives  of  the  plaintiff  be  inquired  into.^^^ 

Fraud. — When  an  assessment  is  fraudulent  and  op- 
pressive equity  will  relieve  by  injunction.  Thus,  where 
the  assessor  and  the  board  of  equalization  fraudulently 
combine  to  put  an  excessive  valuation  on  plaintift''s 
property ,^'^^  or  when  mortgages  are  fraudulently  omitted 
from  taxation,^"^  the  injunction  will  be  granted;  but 
plaintiff  must  first  do  equity  by  tendering  the  amount 
legally  due.  The  mere  fact  that  the  assessment  is  ex- 
cessive or  illegal  is  not  alone  sufficient  to  warrant  an 
injunction,  unless  the  amount  is  so  grossly  excessive 
as  to  imply  fraud.^*^^  The  reason  for  this  is  that  the 
assessor  and  the  board  of  equalization  act  in  a  judicial 
capacity  in  making  assessments,  and  therefore  where 
the  assessment  is  the  result  of  honest  judgment  fairly 

499  Portland  Hibernian  Ben.  Soc.  v.  Kelly,  28  Or.  173,  52  Am.  St. 
Eep.  769,  42  Pae.  3. 

..vu  Oregon  Keal  Estate  Co.  v.  Multnomah  County,  35  Or.  285,  58 
Pae.  106, 

501  Goodnough  v.  Powell,  23  Or.  525,  32  Pae.  396. 

502  Vaughn  v.  School  District,  27  Or.  57,  39  Pae.  393. 

503  Oregon  &  C.  E.  Co.  v.  Jackson  County,  38  Or.  5S9,  64  Pae.  307, 
65  Pae.  369. 

5f>4  Ilaniblin  Real  Estate  Co.  v.  City  of  Astoria,  26  Or.  599,  40  Pae. 
230;  Smith  v.  Kelley,  24  Or,  464,  33  Pae.  642. 

505  Southern  Oregon  Co.  v.  Coos  County,  39  Or.  185,  64  Pae.  646; 
Oregon  &  C.  E.  Co,  v.  Jackson  County,  38  Or.  589,  64  Pae,  307,  65 
Pae.  369. 


735  ENJOINING    TAXATION;    OREGON.  §  440 

applied,  no  injunction  will  issue.^"^  And  as  there  is  an 
appeal  provided  for  from  the  action  of  the  assessor, 
this  must  be  taken  before  the  injunction  is  sought^"' 
For  this  reason  an  allegation  of  fraud  of  the  assessor 
alone  in  a  bill  to  enjoin  the  collection  of  a  tax  is  not 
sufficient  to  warrant  the  court  in  granting  an  injunc- 
tion. In  addition,  fraudulent  action  by  the  board  of 
equalization  must  be  alleged.^'^^ 

Cloud  on  Title. — The  injunction  will  be  more  freely 
granted  when  it  is  sought  to  prevent  a  cloud  on  title 
by  a  sale  of  real  property  for  delinquent  taxes  under 
void  process.  Proceedings  for  the  collection  of  taxes 
are  summary  and  ex  parte,  and  therefore  it  must  appear 
that  all  statutory  requirements  have  been  strictly  com- 
plied with  before  a  sale  is  authorized.^'^^  Thus,  where 
a  sheriff  fails  to  attach  to  the  warrant  an  affidavit  re- 
quired by  statute,  the  sale  will  be  void,  and  may  be  en- 
joined; and  it  is  not  necessary  as  a  prerequisite  to  re- 
lief that  the  legal  tax  be  tendered  or  paid.^^^ 

Tender. — Upon  the  principle  that  he  who  seeks  equity 
must  do  equity,  a  party  seeking  to  enjoin  the  collection 
of  a  tax  valid  in  part  must  tender  the  legal  amount  be- 
fore obtaining  an  injunction  against  the  illegal  part.^^^ 
Thus,  where  there  is  a  fraudulent  excess  in  the  assess- 
ment, the  tax-payer  must  tender  the  amount  rightfully 
due.^^^     And  in  order  to  make  the  tender  effectual,  the 

B06  Southern  Oregon  Co.  v.  Coos  County,  39  Or.  185,  64  Pac.  €46; 
West  Portland  Park  Assn.  v.  Kelly,  29  Or.  412,  45  Pac.  901. 

507  West  Portland  Park  Assn.  v.  Kelly,  29  Or.  412,  45  Pac.  901. 

508  Southern  Oregon  Co.  v.  Coos  County,  39  Or.  185,  64  Pac.  640. 

509  Hughes  V.  Linn  County,  37  Or.  Ill,  60  Pac.  843. 

510  Id. 

511  Dayton  v.  Multnomah  County,  34  Or.  239,  55  Pac.  23;  Alliance 
Trust  Co.  V.  Multnomah  County,  38  Or.  433,  63  Pac.  498;  Goodnough 
V.  Powell,  23  Or.  525,  32  Pac.  396;  Welch  v.  Clatsop  County, 
24  Or.  452,  33  Pac.  934. 

512  Welch  V.  Clatsop  County,  24  Or.  452,  33  Pac.  934. 


i  441  EQUITABLE  EEMEDIES.  736 

money,  if  refused  by  the  tax-collector,  must  be  paid  into 
court.^^^ 

§  441.  Special  Assessments. — An  injunction  will  issue  to 
restrain  the  collection  of  a  special  assessment  which  is  in- 
valid by  reason  of  some  defect  preventing  the  local  body 
from  acquiring  jurisdiction  to  make  it.  The  statutory 
procedure  must  be  strictly  followed.  Therefore,  where 
proper  publication  is  not  made,  an  injunction  will  is- 
sue ;^^'*  and  if  no  encouragement  has  been  given  so  as  to 
raise  an  equitable  estoppel,  it  is  not  necessary  to  make 
any  tender  for  benefits  received. 

Where  property  has  received  any  benefit  from  a  local 
improvement,  courts  will  not  measure  the  amount,  and 
hence  an  injunction  will  not  issue  merely  because  the 
assessment  is  in  excess  of  benefits.  Where,  however, 
the  property  is  so  situated  that  it  could  not  possibly  de- 
rive any  benefit,  the  court  will  interfere  and  grant  an 
injunction.^^^ 

Where  the  proceedings  for  the  improvement  of  a 
street  are  regular,  the  fact  that  independent  proceed- 
ings for  fixing  the  grade  are  irregular  or  invalid,  will 
not  warrant  an  injunction  against  the  collection  of  an 
assessments^® 

It  is  no  ground  for  an  injunction  that  the  statute 
does  not  provide  for  notice,  when  notice  has  in  fact 
been  given.^^'^ 

Where  the  municipal  authorities  have  jurisdiction  to 
improve  a  street,  a  property  owner,  who,  with  knowl- 

513  Welch  V.  Astoria,  26  Or.  89,  37  Pac.  66. 

514  Ladd  V.  Spencer,  23  Or.  193,  31  Pac.  474. 

515  Oregon  &  C.  E.  Co.  v.  City  of  Portland,  35  Or.  229,  35  Pac.  452, 
22  L.  R.  A.  713. 

516  Wingate  v.  City  of  Astoria,  39  Or.  603,  65  Pac.  982. 

517  Shannon  v.  City  of  Portland,  38  Or.  382,  62  Pac.  50. 


737  ENJOINING   TAXATION;   EHODE   ISLAND.     §§  442,  443 

edge  of  such  improvement,  makes  no  objection  until 
after  the  work  has  been  completed,  cannot  enjoin  the 
collection  of  the  assessment  on  the  ground  that  the  pro- 
ceedings have  not  been  regular.^^^  Where,  however, 
there  is  no  jurisdiction,  as  where  the  requisite  petition 
is  not  filed,  there  is  no  estoppel,  and  the  injunction  will 
issue  although  no  objection  has  been  made  until  after 
completion.^^* 

§  442.  Pennsylvania — In  Pennsylvaniaf  where  the 
matters  complained  of  are  mere  irregularities  in  the 
valuation  or  assessment  and  the  tax  is  lawfully  as- 
sessed, an  injunction  will  not  issue,  but  the  complain- 
ant will  be  remanded  to  his  remedy  at  law.  Where, 
however,  there  is  either  a  want  of  power  to  tax  or  a 
disregard  of  the  constitution  in  the  mode  of  assess- 
ment, an  injunction  will  issue.^^*^  Thus,  such  relief 
may  be  obtained  to  restrain  the  collection  of  a  tax  on 
exempt  property.^^^  Likewise,  an  injunction  will  issue 
when  an  illegal  excess  is  imposed  and  when  the  tax  is 
levied  without  authority.^^^ 

§  443.  Khode  Island. — In  Ehode  Island,  equity'  will 
not  enjoin  the  collection  of  a  tax  at  the  suit  of  an  in- 
dividual tax-payer  on  the  ground  of  illegality,  when 
the  illegality  ati'ects  him  alone,  unless  special  equities 

518  Wingate  v.  City  of  Astoria,  39  Or.  €03,  65  Pac.  982;  Wilson  v. 
City  of  Salem,  24  Or.  504,  34  Pac.  9,  691. 

519  Strout  V.  City  of  Portland,  26  Or.  294,  38  Pac.  126. 

520  St.  Mary's  Gas  Co.  v.  Elk  County,  191  Pa.  St.  458,  43  Atl.  321; 
Banger's  Appeal,  109  Pa.  St.  79,  16  Wkly.  Not.  Cas.  289;  Arthur  v. 
School  Dist.,  164  Pa.  St.  410,  30  Atl.  299,  35  Wkly.  Not.  Cas.  289; 
Moore  v.  Taylor,  147  Pa.  St.  481,  23  Atl.  768. 

521  St.  Mary's  Gas  Co.  v.  Elk  County,  191  Pa.  St.  458,  43  Atl.  321; 
Lehigh  Coal  &  Nav,  Co.,  v.  Miller,  155  Pa.  St.  542,  26  Atl.  660. 

622  Appeal  of  Conners ,  103  Pa.  St.  356. 
Equitable  Remedies,  Vol.  I — 47 


15  444,445  EQUITABLE  ilExMEDIES.  738 

are  shown, ^^^^  And  it  has  been  held  that  the  cloud 
upon  title  to  land  cast  by  a  sale  under  a  void  tax  is  too 
easily  dispelled  to  warrant  the  court  in  taking  juris- 
diction on  that  ground.^^*  But  when  the  illegality  ex- 
tends to  the  whole  tax,  so  that  the  question  involved 
is  the  validity  of  the  whole  tax  and  its  assessment  on 
every  person  taxed,  equity  "»vill  take  jurisdiction  at  the 
suit  of  one  or  more  tax-payers,  suing  in  behalf  of  all 
the  tax-payers  as  well  as  in  his  or  their  own  behalf 
for  the  purpose  of  preventing  a  multiplicity  of  suits.^^'^ 
An  injunction  will  not  lie  against  a  tax-collector  to 
prevent  a  mode  of  levy  authorized  by  statute  because 
some  other  mode  may  be  more  equitable.^^^ 

§  444.  South  Carolina. — In  South  Carolina  an  in- 
junction will  issue  to  restrain  the  collection  of  a  tax 
on  exempt  property  which  casts  a  cloud  on  title.^^'^ 

§  445.  South  Dakota. — In  South  Dakota  injunctions 
are  readily  granted  to  restrain  the  collection  of  illegal 
taxes.  Just  where  the  limitations  are  is  hard  to  de- 
termine. The  injunction  will  be  granted  to  restrain 
the  collection  of  an  illegal  excess,  provided  the  amount 
legally  due  is  teudered.^-^  It  will  also  be  granted  to 
enjoin  the  collection  of  a  tax  on  personal  property,  regu- 

523  Greene  v.  Mumford,  5  E.  I.  472,  73  Am.  Dec.  79. 

524  Id.;  Sherman  v.  Leonard,  10  E.  I.  469. 

525  McTwiggan  v.  Hunter,  18  E.  L  776,  30  Atl.  962;  Tefft  v.  Lewis 
(E.  I.),  60  Atl.  243;  Sherman  v.  Benford,  10  E.  L  559;  Quimby  v. 
Wood,  19  E.  I.  571,  35  Atl,  149. 

526  People's  Sav,  Bank  v.  Tripp,  13  E,  I,  621. 

527  Vesta  Mills  v.  City  Council  of  Charleston,  60  S.  C,  1,  38  S,  E. 
226,  But  by  Code  1902,  §  412,  Eev,  Stats,  1893,  i  339,  "collection 
of  taxes  shall  not  bo  stayed  or  prevented  by  any  injunction,  writ  or 
order":  Western  Union  Tel,  Co,  v.  Town  of  Winnsboro  (S,  C),  50 
S.  E.  870, 

528  Dakota  Loan  &  Trust  Co.  v.  County  of  Coddington,  9  S,  D, 
159,  68  N,  W,  314. 


739  ENJOINING  TAXATION;   SOUTH  DAKOTA.  §  445 

lar  on  its  face,  which  is  made  a  lien  on  land,  especially 
when  there  is  a  possibility  of  a  multiplicity  of  ac- 
tions.^29  Thus,  a  public  sale  to  numerous  purchasers 
of  shares  in  a  cori^oration  for  illegal  personal  taxes, 
constituting  a  lien  on  real  property,  suggests  a  multi- 
tude of  suits  and  irreparable  injury,  to  avoid  which  the 
aid  of  a  court  of  equity  may  be  invoked.^^"  But  the 
courts,  in  at  least  one  instance,  have  gone  further,  and 
have  held  that  an  injunction  will  issue  to  restrain  the 
sale  of  personal  property  for  an  illegal  tax,  irrespective 
of  whether  it  constitutes  a  lien  on  land  or  not.  Thus, 
an  injunction  will  issue  to  prevent  the  seizure  and  sale 
of  personal  property  in  satisfaction  of  a  tax  wrongfully 
and  unlawfully  levied  thereon,  in  a  county  in  which 
the  plaintiff  is  not  a  resident,  and  in  which  the  prop- 
erty is  presumed  not  to  have  been  when  the  assessment 
was  made.^^^  Inconsistent  as  it  may  seem  with  some 
of  their  other  holdings,  the  courts  have  held  that  no 
injunction  will  issue  to  restrain  the  collection  of  an  il- 
legal tax  when  there  is  an  adequate  remedy  at  law. 
Thus,  the  collection  of  a  state  insi)ection  tax  will  not 
be  restrained  simply  because  the  act  authorizing  it  may 
be  unconstitutional,  for  if  such  prove  to  be  the  case, 
the  officer  enforcing  it  will  be  a  mere  trespasser,  and  ac- 
cordingly the  plaintiff  will  have  an  adequate  remedy  at 
law.«32 

Where  a  tax  deed  is  set  aside  for  defects  not  affecting 
the  validity  of  the  tax,  a  decree  that  the  party  attack- 
ing shall  reimburse  the  purchaser  is  within  the  equi- 
table powers  of  the  court.^^^ 

529  Macomb  v.  Lake  County,  9  S.  D.  466,  70  N.  W.  652. 

530  Id. 

531  Knapp  V.  Charles  Mix  County,  7  S.  D.  399,  64  N.  W.  187. 

532  Franklin  v.  Appel,  10  S.  D.  391,  73  N.  W.  259. 

533  McKinney  v.  Minnehaha  County   (S,  D.),  97  N.  W.  15. 


ii  446-448  EQUITABLE  REMEDIES.  740 

§  446.  Special  Assessments. — There  is  a  presumption 
that  the  proceedings  of  municipal  officers  in  imposing 
special  assessments  are  regular.  Therefore,  a  party 
seeking  an  injunction  must  set  up  in  his  complaint  some 
substantial  requirement  of  the  statute  which  has  not 
been  complied  with.^^* 

§  447.  Tennessee. — In  Tennessee  tax-books  are  pro- 
cess equivalent  to  an  execution  in  the  hands  of  an  of- 
ficer. An  injunction  will  issue  to  restrain  the  collec- 
tion of  a  tax,  even  on  personal  property,  under  void 
process,  although  there  is  a  concurrent  remedy  by  cer- 
tiorari.^^^  An  injunction,  however,  will  not  issue  to 
restrain  the  collection  of  a  void  tax  when  the  complain- 
ant waits  until  the  greater  part  has  been  paid.^^^ 

§  448.  Texas. — In  Texas  an  injunction  will  issue  to 
restrain  the  collection  of  an  illegal  or  fraudulent  tax. 
Thus,  where  the  property  of  an  individual  is  about  to 
be  sold  to  satisfy  a  tax  levied  against  him  on  prop- 
erty which  he  does  not  own,^^'^  as,  for  instance,  where 
a  bank  is  assessed  upon  its  own  stock  which  is  the 
property  of  its  stockholders,^^^  or  where  real  property 
is  about  to  be  sold  for  an  illegal  tax  on  personal  prop- 
erty,^^®  an  injunction  will  issue  to  prevent  the  wrong. 
Any  illegality  not  apparent  on  the  face  of  the  proceed- 
ings,^^"  such  as  a  case  of  double  taxation,^^^  is  sufficient 

534  Phillips  V.  City  of  Sioux  Falls,  5  S.  D.  524,  59  N.  W.  881. 

635  Alexander  v,  Henderson,  105  Tenn.  431,  58  S.  W.  648;  National 
Bank  of  Chattanooga  v.  Mayor  &  Aldermen  of  Chattanooga,  8 
Heisk,  816. 

536  Kennedy  v.  Montgomery,  98  Tenn.  165,  38  S.  W.  1075. 

537  Davis  V.  Burnett,  77  Tex.  3,  13  S.  W.  613. 

538  Waco  National  Bank  v.  Rogers,  51  Tex.  606. 

639  Court  V.  O'Connor,  65  Tex.  339. 

640  Cook  V.  Galveston,  H.  &  S.  A.  E.  Co.,  5  Tex.  Civ.  App.  644, 
24  S.  W.  544;  Blessing  v.  City  of  Galveston,  42  Tex.  641. 

641  Schmidt  v.  Galveston,  H.  &  S.  A.  K.  Co.  (Tex.  Civ.  App.), 
24   S.   W.    547. 


741  ENJOINING    TAXATION;    TEXAS.  §  448 

to  warrant  the  court  in  granting  the  relief.  And  where 
an  illegal  tax  affecting  numerous  persons  is  sought  to 
be  enforced,  any  one  or  more  of  the  parties  sought  to 
be  subjected  to  the  imposition  may,  in  the  same  suit, 
restrain  its  collection.^^^  Thus,  any  number  of  tax- 
I>ayers  may  join  in  an  action  to  restrain  the  collection 
of  an  illegal  poll-tax.^^^  In  cases  where  the  whole  tax 
is  illegal,  it  is  not  necessary  to  apply  to  the  board  of 
equalization.^^^  The  function  of  that  board  is  to  cor- 
rect errors  in  the  valuation  of  property  which  has  been 
properly  assessed.  It  has  no  power  to  add  to  the  rolls 
property  not  previously  assessed,  nor  to  take  from  them 
property  which  they  embrace.  Hence  such  an  appeal 
would  be  useless. 

Where,  however,  it  is  only  an  excess  in  the  assessment 
that  is  complained  of,  the  tax-payer  must  resort  to  the 
board  of  equalization,  because  of  the  familiar  doctrine 
that  in  matters  of  this  kind  equity  will  not  take  juris- 
diction when  there  is  an  adequate  remedy  at  law.^^^ 
And  no  trifling  excuse,  such  as  the  illness  of  a  cor- 
poration's agent,  will  be  sufficient  to  give  the  court  jur- 
isdiction.^^ ^  Where  the  board  errs  in  honest  judgment, 
there  is  no  appeal  from  its  decision,  and  no  injunction 
will  issue;  but  when,  in  raising  or  fixing  the  value  of 
property,  it  acts  from  corrupt  or  fraudulent  •  motives, 
and  in  violation  of  the  laws  of  the  state,  whether  con- 
stitutional or  statutory,  its  acts  are  voidable  at  the  suit 

642  Morris  v.  Cummings,  91  Tex.  618,  45  S.  W.  383. 

543  Id.  But  injunction  does  not  lie  after  suits  have  already 
teen  begiin  for  the  collection  of  the  taxes:  McMickle  v.  Hardin  25 
Tf.x.  Civ.  App.  222,  61  S.  W.  322. 

544  Court  V.  O'Connor,  65  Tex.  339;  Davis  v.  Burnett,  77  Tex.  3, 
13  S.  W.  613. 

545  Duck  V.  Peeler,   7i   Tex.   272,   11   S.   W.   1111. 

54  0  Clawson  Lumber  Co.  v.  Jones,  20  Tex.  Civ.  App.  208,  49  S.  W. 
909. 


§  449  EQUITABLE  EEMEDIES.  742 

of  the  party  aggrievGcl,  and  an  injunction  will  issue  to 
restrain  the  collection  of  the  excess.^*^  And  in  an  ac- 
tion to  restrain  the  collection  of  an  illegal  excess,  the 
plaintiff  must  allege  the  definite  amount  of  excess. 
Thus,  an  allegation  that  plaintiff's  assessment  had  been 
illegally  increased  because  the  citj^  had  illegally  ex- 
empted certain  property  from  taxation,  is  not  sufficient 
unless  the  amount  of  such  increase  is  alleged.*^**  And 
in  all  of  these  cases  the  plaintiff  must  do  equity  before 
obtaining  the  injunction  by  making  a  tender  of  the 
amount  legally  due.^^* 

Where  property  is  subject  to  taxation,  a  tax  levied 
upon  it  will  not  be  enjoined  because  of  mere  irregulari- 
ties in  the  assessment.  Thus,  where  there  is  a  misde- 
scription of  the  property  by  the  assessor,  or  an  irregu- 
larity in  his  entering  it  upon  the  assessment  list  or 
roll,  no  ground  for  an  injunction  is  presented.^^^ 

An  injunction  will  not  issue  to  restrain  the  collec- 
tion of  a  municipal  tax  on  the  ground  of  the  invalidity 
of  the  municipal  incorporation,  although  both  the  cor- 
poration and  its  officers  are  insolvent.^^^ 

§  449.  Special  Assessments. — The  statute  providing  a 
procedure  for  local  improvements  must  be  strictly  fol- 
lowed, and  if  not,  an  injunction  will  issue  to  restrain 
the  collection  of  the  assessment.  Thus,  an  injunction 
will  issue  when  an  estimate  of  the  cost  is  not  first  made 
by  the  city  authorities,  as  required  by  statute.^^^ 

547  Johnson  v.  Holland,  17  Tex.  210,  43  S.  W.  71. 
B48  Altgelt  V.  City  of  San  Antonio,  81  Tex.  436,   17  S.  "W.   75,   13 
L.  R.  A.  383. 

549  George  v.  Dean,  47  Tex.  73. 

550  George  v.  Dean,  47  Tex.  73. 

551  Troutman  v.  McCleskey,  7  Tex.  Civ.  App.  .561,  27  S.  W.  173. 

552  Kerr  v.   City  of  Corsicana    (Tex.   Civ.   App.),   35   S.    W.   694. 


743         ENJOINING    TAXATION;    UTAII-VEKMONT.     §§  450-452 

§  450.  Utah. — In  Utah  it  is  provided  by  statute  that 
"no  injunction  shall  be  granted  by  any  court  or  judge 
to  restrain  the  collection  of  any  tax  or  any  part  thereof, 
nor  to  restrain  the  sale  of  any  property  for  the  non- 
payment of  the  tax,  except,  first,  where  the  tax,  or  any 
part  thereof  sought  to  be  enjoined  is  illegal,  or  is  not 
authorized  by  law.  If  the  payment  of  a  part  of  a  tax 
is  sought  to  be  enjoined,  the  other  part  must  be  paid 
or  tendered  before  action  can  be  commenced."^^^  In 
construing  this,  the  supreme  court  has  held  that  the 
remedy  should  not  be  invoked,  except  in  clear  cases, 
based  upon  unquestionable  facts,  coming  within  the  clear 
terms,  letter,  and  spirit  of  the  statute,^^* 

Before  the  enactment  of  the  statute  quoted  above,  it 
was  held  that  an  injunction  will  not  issue  to  restrain 
the  collection  of  an  illegal  tax  on  the  ground  that  it 
casts  a  cloud  on  title  to  real  estate,  when  personal  prop- 
erty has  already  been  levied  upon  to  satisfy  it.^^^  The 
presumption  is  that  the  levy  is  sufficient  to  satisfy  the 
tax,  and  hence  the  cloud  is  removed. 

§  451.  Vermont — An  injunction  will  not  be  granted 
to  restrain  the  collection  of  a  tax  on  the  ground  of 
fraud,  where  there  has  been  an  adverse  decision  by  a 
board  of  listers.^^^. 

§  452.  Special  Assessments. — An  assessment  void  upon 
its  face  does  not  create  a  cloud  on  title  which  the  court 
will  remove  ;^^^  so  held  of  an  assessment  which  did  not 
affirmatively  show,  as  required  by  the  city  charter,  that 

553  Laws  1896,  p.  465,   §   179. 

554  Mercur  Gold  M.  &  M.  Co.  v.  Spry,  16  Utah,  222,  52  Pae.  382. 
655  Mercur  Gold  M.  &  M.  Co.  v.  Spry,  16  Utah,  222,  52  Pac.  382. 
556  Phillips  V.  Bancroft,  75  Vt.  357,  56  Atl.  9. 

657  Blanchard  v.  City  of  Barre     Vt.),  60  Atl.  970. 


58  453,454  EQUITABLE  REMEDIES.  744 

it  was  made  "according  to  special  benefits"  to  the  prop- 
erty assessed.^^^ 

§  453.  Virginia. — In  Virginia,  an  injunction  has  been 
granted  to  restrain  a  county  clerk  from  conveying  lands 
sold  to  the  state  for  illegal  taxes  to  an  applicant  for 
purchase,  on  the  ground  that  such  conveyance  would 
cast  a  cloud  on  title.^^^  And  the  enforcement  of  a  tax 
on  exempt  property  will  be  enjoined.^^^  Unconstitu- 
tionality alone  is  no  ground  for  injunction.^^^  ^Vhen 
a  municipal  assessment  has  been  corrected  by  the  tri- 
bunal provided  by  law  and  yet  the  municipal  author- 
ities proceed  to  levy  the  tax  upon  the  original  assess- 
ment, an  injunction  against  the  collection  of  such  a 
tax  will  issue.^^2 

§  454.  Washington. — In  Washington,  an  injunction 
will  issue  to  restrain  the  collection  of  a  tax  when  it  is 
illegal  or  fraudulent,  and  in  certain  cases  where  it  is 
excessive.  Where  the  tax  is  illegal,  it  is  immaterial 
whether  the  subject  matter  is  real  or  personal  property. 
Thus,  an  injunction  will  issue  to  restrain  the  sale  of 
personal  property  under  a  tax  beyond  the  jurisdiction 
of  the  assessor  to  assess  ;^*^^  and  to  restrain  the  sale  of 
corporate  stock  to  satisfy  an  illegal  assessment.^^^  And 
in  case  of  personal  property,  at  least,  it  will  issue  to 
restrain  an  illegal  sale,  even  though  the  original  tax 

558  Id. 

559  Baker  v.  Briggs,  99  Va.  360,  3  Va.  Sup.  Ct.  Eep.  252, 

560  City  of  Staunton  v.  Mary  Baldwin  Seminary,  99  Va.  653,  3 
Va.  Sup.  Ct.  Eep.  468,  39  S.  E.  596. 

5C1  Thomas  v.  Eowe    (Va.),  22  S.  E.  157. 

562  City  of  Eichmond  v.  Crenshaw,  76  Va.  936. 

563  Northwestern  Lumber  Co.  v.  Chehalis  County,  24  Wash.  626, 
64  Pac.  787. 

504  Lewiston  Water  &  Power  Co.  v.  Asotin  County,  24  Wash.  371, 
64   Pac.    544. 


745  ENJOINING   TAXATION;   WASHINGTON.  S  454 

was  valid.  Thus,  where  personal  property  is  pur- 
chased in  good  faith  by  a  person  who  has  no  notice 
of  any  lien  upon  it  for  taxes,  such  person  may  enjoin 
a  sale  to  satisfy  such  lien.^^^ 

Where  a  tax  is  fraudulently  levied,  it  is  also  held 
that  an  injunction  will  issue.  Thus,  it  will  be  granted 
where  the  tax-payer,  relying  upon  a  statement  by  the 
assessor  that  the  assessment  will  be  the  same  as  in  the 
previous  year,  fails  to  go  before  the  board  of  equaliza- 
tion to  protest  against  an  increase.^^^ 

The  rules  as  to  excessive  valuation  are  sliglitly  dif- 
ferent for  real  and  personal  property.  While  the  court 
will  not  interfere  "to  correct  mere  mistakes  or  inad- 
vertences, or  to  contravene  or  set  aside  the  judgments 
of  assessors  or  boards  of  equalization  in  relation  to 
values,  it  will  interfere  when  the  officers  fraudulently, 
capriciously,  or  tyrannically  refuse  to  exercise  their 
judgment  by  adopting  a  rule  or  system  of  valuation  de- 
signed to  operate  unequally  and  to  violate  a  fundamental 
principle  of  the  constitution."^^^  Thus,  where  the  as- 
sessment of  real  property  is  arbitrary  and  made  with- 
out regard  to  the  true  value,  as  where  a  mortgage^  is 
assessed  at  thirty  thousand  dollars  while  the  land  it- 
self is  assessed  at  only  two  thousand,  an  injunction  will 
issue,  although  the  board  of  equalization  refuses  re- 
lief.^*^^  And  the  injunction  will  issue  notwithstanding 
that  a  statutory  remedy  is  provided  by  allowing  ob- 
jections to  the  rendition  of  a  judgment,  for  the  plain- 
tiff is  entitled  to  such  relief  in  order  to  remove  the 

665  Phelan  v.  Smith,  22  Wash.  397,  61  Pac.  31. 

566  Landers'  Estate  Co.  v.  Clallam  County,  19  Wash.  569,  53  Pac. 
670. 

567  Andrews  v.  King  County,  1  Wash.  46,  22  Am.  St.  Hep.  13(3, 
23  Pac.  409. 

668  Knapp  V.  King  County,  17  Wash.  567,  50  Pac.  480. 


S  455  EQUITABLE  REMEDIES.  746 

cloud  from  his  title.^^^  In  cases  of  personal  property 
the  rule  is  said  to  be  not  quite  so  broad.  Thus,  in  such 
cases,  it  has  been  held  that  no  injunction  will  issue 
when  the  sole  question  is  whether  or  not  the  board  of 
equalization  acted  under  an  honest  belief  in  placing  a 
value  on  the  property.^"^"  The  case  of  Andrews  v.  King 
County,  cited  supra,  is  distinguished  as  an  exceptional 
case. 

An  injunction  will  not  issue  because  of  a  slight  ir- 
regularity. It  has  been  held  accordingly  that  a  statute 
requiring  the  rate  to  be  fixed  within  thirty  days  after 
the  filing  of  the  assessment-roll  is  not  so  mandatory 
that  a  slight  delay  will  invalidate  the  levy;  and  conse- 
quently an  injunction  will  not  issue.^'^^ 

Tender. — When  a  tax  is  valid  in  part  and  void  in 
part,  a  tender  must  be  made  of  the  valid  part  before  the 
other  can  be  enjoined.^'^^  If  the  tender  is  bona  fide,  the 
finding  of  the  court  that  a  larger  amount  is  due  affects 
only  the  question  of  costs.  The  bill  should  allege  the 
amount  justly  due,  a  tender  of  it,  and  an  offer  to  pay 
such  further  sum  as  should  be  found  to  be  due.^'^^ 
Where  the  tax  is  wholly  void,  however,  no  tender  is 
necessary.^^* 

§  455.  Special  Assessments. — Where  the  assessment  is 
manifestly  unequal,  an  injunction  is  proper.  Thus, 
where  the  value  of  the  abutting  property  is  made  the 
basis  for  the  assessment  and  it  appears  that  plaintiff's 
property  is  taken  for  a  distance  of  a  thousand  feet  back 

609  Benn  v.  Chchalis  County,  11  Wash.  134,  39  Pac.  365. 

570  Olympia  Water  Works  v.  Gelbach,  16  Wash.  482,  48  Pac.  251. 

571  Wingate  v.  Ketner,  8  Wash.  94,  35  Pac.  591. 

572  2  Ballinger's   Ann.   Codes   &   Stats.,   §   5678. 

573  Landes's  Estate  Co.  v.  Clallam  County,  19  Wash.  569,  53 
Pac.    670. 

574  Lewiston  Water  &  Power  Co.  v.  Asotin  County,  24  Wash.  371, 
C4    Pac.    544. 


f47  ENJOINING  TAXATION;  WEST  VIEGINIA.  S  45b 

from  the  street  for  purpose  of  assessment  while  other 
property  is  assessed  for  a  much  less  distance,  an  in- 
junction is  proper.^"^^  And  in  such  a  case  it  is  imma- 
terial that  the  plaintiff  has  petitioned  for  the  improve- 
ment An  injunction  is  also  proper  when  the  work  has 
been  done  in  such  a  manner  that  it  is  a  detriment  rather 
than  a  benefit  to  the  property.  Where  this  appears  it 
is  immaterial  whether  or  not  the  work  has  been  ac- 
cepted by  the  proper  board.^^^ 

§  456.  West  Virginia. — In  West  Virginia  an  injunc- 
tion will  not  issue  to  restrain  the  collection  of  a  tax  on 
the  mere  ground  of  illegality.  There  must  exist  in  ad- 
dition circumstances  bringing  the  case  within  some  rec- 
ognized head  of  equity  jurisdiction,  such  as  the  preven- 
tion of  multiplicity  of  suits,  irreparable  injury  or  cloud 
on  title.^"^^  Likewise,  an  injunction  will  not  issue  when 
a  tax  is  merely  irregular,  as  where  property  subject  to 
taxation  is  erroneously  assessed.^'^^  In  such  cases  the 
tax-payer  is  left  to  his  remedy  at  law. 

A  statute  giving  a  remedy  at  law  for  an  illegal  tax 
which  does  not  by  its  terms  take  away  the  equitable 
jurisdiction  will  be  construed  as  creating  an  additional 
remedy,  and  will  not  oust  the  court  of  equity  of  its 
jurisdiction.^^® 

675  Howell  V.  City  of  Tacoma,  3  Wash.  711,  28  Am.  St.  Kep.  83, 
24   Pac.    449. 

57  6  Hasch  V.  City  of  Seattle,  10  Wash.  435,  38  Pae.  1131. 

577  Douglass  V.  Town  of  Harrisville,  9  W.  Va.  162,  27  Am.  Rep. 
54S;  Winifrede  Coal  Co.  v.  Board  of  Education,  47  W.  Va.  132,  34 
S.  E.  776;  Christie  v.  Melden,  23  W.  Va.  667;  Riddle  v.  Town  of 
Charlestown,  43  W.  Va.  796,  28  S.  E.  831;  Williams  v.  County 
Court,  26  W.  Va.  488,  53  Am.  Rep.  94;  Blue  Jacket  Consol.  Copper 
Co.  V.  Scherr,  50  W.  Va.  533,  40  S.  E.  514. 

578  Tygart's  Val.  Bank  v.  Town  of  Philippi,  38  W.  Va.  219,  18 
S.  E.  489;   Christie  v.  Melden,  23  W.  Va.  667. 

579  Winifrede  Coal  Co.  v.  Board  of  Education,  47  W.  Va.  132,  ^4 
S.    E.    776. 


(  457  EQUITABLE  REMEDIES.  748 

Personal  Property. — The  sale  of  personal  property 
for  unpaid  taxes  will  not  be  restrained  unless  it  is  of 
peculiar  value  to  the  owner,  and  it  is  manifest  that 
great  injury  would  result  from  the  sale.^^'^  The  rule 
is  laid  down  more  broadly  when  purely  municipal  taxa- 
tion is  in  question.  Thus,  it  has  been  held  that  if  munic- 
ipal authorities  tax  persons  or  property  not  legally  tax- 
able, or  if  they  exceed  the  limit  prescribed  by  the  stat- 
ute conferring  their  power  to  tax,  their  action  is  ultra 
vires  and  void,  and  equity  has  power  to  grant  relief. ^^^ 

Multiplicity  of  Suits. — Where  all  the  tax-payers  of  a 
county  are  affected  by  an  illegal  tax,  one  or  more  tax- 
payers, in  behalf  of  himself  or  themselves  and  all  other 
tax-payers  of  the  county  subject  thereto,  may  obtain  an 
injunction  to  prevent  the  collection  of  such  tax,  in  order 
to  prevent  a  multiplicity  of  suits.^^^ 

Cloud  on  Title. — Taxes  assessed  on  real  property 
without  lawful  authority  cast  a  cloud  on  title,  and 
therefore  their  collection  will  be  enjoined.^^* 

§  457.  Special  Assessments. — An  injunction  will  not 
issue  to  restrain  the  collection  of  a  special  assessment 
on  the  ground  of  illegality  unless  facts  exist  bringing 
the  case  under  some  other  recognized  head  of  equity 

C80  White  V.  Stender,  24  W.  Va.   615,  49  Am.  Eep.  283. 

581  Christie  v.  Melden,  23  W.  Va.  667;  Grim  v.  Town  of  Philippi, 
38  W.  Va.  122,  18  S.  E.  466. 

5S2  Williams  v.  County  Courr,  26  W.  Va.  488,  53  Am.  Eep.  94  (a 
leading  case);  Winifrede  Coal  Co.  v.  Board  of  Education,  47  W.  Va. 
132,  34  S.  E.  776;  McClung  v.  Livesay,  7  W.  Va.  329;  Doonan  v. 
Board  of  Education,  9  W.  Va.  246;  Corrothers  v.  Board  of  Educa- 
tion, 16  W.  Va.  527;  Blue  Jacket  Co.  v.  Scherr,  50  W.  Va.  533,  40 
S.  E.  514.  But  the  suit  must  be  brought  expressly  on  behalf  of  all 
the  tax-payers:  See  cases  cited. 

583  Powell  V.  City  of  Parkersburg,  28  W.  Va.  698;  Tygart 'a  Val 
Bank  v.  Town  of  Philippi,  38  W.  Va.  219,  18  S.  E.  489. 


749  ENJOINING  TAXATION;   WISCONSIN.  S  458 

jurisdiction.^^*  And  the  mere  fact  that  the  assessment 
is  a  lien  on  real  estate  is  not  sufficient  to  confer  juris- 
diction when  there  is  an  adequate  remedy  at  law  by 
suit  to  recover  back  the  amount  paid  under  protest.^*^ 
In  a  recent  case,  however,  the  rule  is  laid  down  broadly, 
that  equity  has  jurisdiction  to  enjoin  the  collection  of 
an  ultra  vires  assessment.^^^ 

§  458.  Wisconsin — In  General. — It  is  the  settled  doe- 
trine  in  Wisconsin  that  it  is  not  enough  to  avoid  a  tax 
in  equity  to  show  that  the  proceedings  were  irregular, 
or  even  void,  but,  in  addition,  it  must  be  shown  that  the 
taxes  were  inequitable,  and  that  it  will  be  against  con- 
science to  let  them  go  on.^^'^ 

From  the  general  principle  that  equity  possesses  no 
power  to  revise,  control,  or  correct  the  action  of  public, 
political  or  executive  offlcers,  at  the  suit  of  a  private  per- 
son, except  as  incidental  and  subsidiary  to  the  protection 
of  some  private  right,  or  the  prevention  of  some  private 
wrong,  the  mere  fact  that  the  voters  of  a  town  have 
voted  an  illegal  tax  is  not  sufficient  ground  for  an  in- 

584  Wilson  V.  Town  of  Philippi,  39  W.  Va.  75,  19  S.  E.  553; 
Douglass  V.  Town  of  Harrisville,  9  W.  Va.  162,  27  Am.  Eep.  548. 

585  Wilson  V.  Town  of  Philippi,  39  W.  Va.  75,  19  S.  E.  553. 

586  Cain  V.  City  of  Eljiins   (W.  Va.),  49  S.  E.  898. 

587  Wells  V.  Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W.  1071; 
Chicago  &  N.  W.  E.  Co.  v.  Porest  County,  95  Wis.  80,  70  N.  W.  77; 
Hayes  v.  Douglas  County,  92  Wis.  429,  53  Am.  St.  Eep.  926,  65  N,  W. 
482,  31  L.  E.  A.  213;  Hixon  v.  Oneida  County,  82  Wis.  531,  52  N.  W. 
445;  Bond  v.  City  of  Kenosha,  17  Wis.  286  (no  injunction  where  the 
irregularity  diminished  rather  than  increased  plaintiff's  taxes); 
Warden  v.  Board  of  Supervisors  of  Fond  du  Lac  County,  14  Wis.  618 
(same;  a  leading  case).  Marsh  v.  Supervisors  of  Clark  County,  42 
Wis.  502,  Goff  V.  Supervisors  of  Outagamie  County,  43  Wis.  55,  and 
Schettler  v.  City  of  Fort  Howard,  43  Wis.  48,  so  far  as  they  may 
be  considered  as  having  departed  from  this  principle,  have  since  been 
ovenuled:  See  Hixon  v.  Oneida  County,  supra. 


S  459  EQUITABLE  EEMEDIES.  750 

junction,  in  advance  of  any  invasion  of  the  legal  rights 
of  the  plaintiff.^ss 

A  court  of  equity  has  no  jurisdiction  to  restrain  the 
collection  of  taxes  illegally  or  improperly  assessed  upon 
personal  property,  inasmuch  as  the  party  injured  has 
an  ample  remedy  by  action  against  the  municipal  cor- 
poration to  which  the  money  is  paid  or  for  which  it  is 
collected.^*' 

§  459.  Defects  Going  to  the  Validity  of  the  Assessment — 
The  doctrine  was  laid  down  by  the  supreme  court  of 
Wisconsin  at  an  early  day,  that  a  court  of  equity  will 
not  interfere  to  declare  a  tax  invalid  and  restrain  its 
collection,  unless  the  objections  to  the  proceedings  are 
such  as  go  to  the  very  groundwork  of  the  tax,  and  neces- 
sarily affect  materially  its  principle,  and  show  that  it 
must  necessarily  be  unjust  and  unequal. ^^"  When  the 
objection  is  a  mere  non-compliance  with  some  direction 
of  the  statute,  notwithstanding  which  the  tax  may  have 
been  entirely  just  or  equal,  it  ought  not  to  have  the 
effect  of  rendering  the  whole  tax  invalid. 

Where  the  assessment-roll  was  unverified,  and  all  the 
rules  established  by  law  to  govern  the  assessment  of 
property  had  been  violated,  and  one  of  the  assessors 
testified  that  he  could  not  make  the  oath  required  by 
law  without  being  guilty  of  perjury,   the  assessment 

588  Judd  V.  Town  of  Fox  Lake,  28  Wis.  583. 

589  Van  Cott  V.  Board  of  Supervisors  of  Milwaukee  County,  18 
Wis.  259. 

590  Hixon  V.  Oneida  County,  82  Wis.  531,  52  N.  W.  445,  nnd 
cases  cited;  W^isconsin  Central  E.  Co.  v.  Ashland  County,  81  Wis. 
10,  50  N.  W.  937;  Canfield  v.  Bayfield  County,  74  Wis.  60,  64,  41 
N.  W.  437,  42  N.  W.  100;  Hart  v.  Smith,  44  Wis.  217;  Kaehler  v. 
Dobberpuhl,  56  Wis.  480,  14  N.  W.  644;  Marsh  v.  Supervisors  of 
Clark  County,  42  Wis.  502,  512;  Mills  v.  Johnson,  17  Wis.  598,  602; 
Warden  v.  Supervisors  of  Fond  du  Lac  County,  14  Wis.  618;  Mills 
V.  Gleason,  11  Wis.  470,  497,  78  Am.  Dec.  721. 


75J  ENJOINING  TAXATION;    WISCONSIN.  §  460 

was  held  to  be  necessarily  unequal  and  the  whole  tax 
vitiated  ;^^^  so,  where  there  was  an  arbitrary  classi- 
fication of  lands  by  rules  that  disregarded  the  prin- 
ciples laid  down  by  statute  to  guide  the  assessor  in  mak- 
ing valuations.^^^  A  complaint  alleging  a  corrupt  and 
fraudulent  assessment,  to  the  great  injury  of  the  plain- 
tiff, in  that  the  assessors,  in  violation  of  law,  inten- 
tionally assessed  vacant  lands  at  a  much  greater  sum 
in  proportion  to  their  value  than  improved  lands,  states 
a  defect  going  to  the  validity  of  the  assessment  and  af- 
fecting the  groundwork  of  the  tax.^^^  The  intentional 
omission,  as  exempt  property,  of  property  not  exempt, 
goes  to  the  groundwork  of  the  whole  tax.^^^  It  has  been 
held  that  where  the  assessor  adopted  a  rule  of  valuation 
based  on  what  he  thought  the  lands  would  bring  at 
a  forced  sale,  in  violation  of  the  statutory  rule  that 
lands  should  be  assessed  at  the  value  which  could  ordi- 
narily be  obtained  therefor  at  private  sale,  the  whole 
tax  is  vitiated,  and  an  injunction  is  proper  ;^^^  so,  where 
the  assessment  was  made  on  a  basis  of  one-third  of  the 
real  value.^^* 

§  460.     Defects  not  Going:  to  the  Validity  of  the  Assess- 
ment— A  complaint  alleging  that  in  making  the  levy  one 

B91  Marsh  v.  Supervisors  of  Clark  County,  42  Wis.  502,  as  ex- 
plained in  Fifield  v,  Marinette  County,  62  Wis.  532,  538,  22  N.  W. 
705. 

592  Hersey  v.  Board  of  Supervisors  of  Barron  County,  37  Wis.  75. 

593  Anderson   v,   Douglas   County,    98   Wis.    393,    74   N.   W.    109. 

594  Green  Bay  &  M.  Canal  Co.  v.  Outagamie  County,  76  Wis.  587, 
45  N.  W.  536;  Hersey  v.  Board  of  Supervisors  of  Milwaukee  County, 
16  Wis.  186,  82  Am.  Dec.  713;  Weeks  v.  City  of  Milwaukee,  10  Wis. 
242. 

595  Goff  V.   Supervisors  of  Outagamie  County,  43  Wis,  55. 

596  Schettler  v.  City  of  Fort  Howard,  43  Wis.  48.  Doubt  has  be6n 
cast  upon  these  two  cases,  however,  by  later  decisions:  See  Hixon  v. 
Oneida  County,  82  Wis.  531,  52  N.  W.  445. 


i  460  EQUITABLE  EEMEDIES.  752 

item  was  for  a  certain  sum  for  "the  general  fund,"  and 
that  the  city  had  no  authority  to  levy  for  such  a  fund, 
does  not  state  a  defect  going  to  the  validity  of  the  as- 
sessment.^^'^  The  fact  that  the  resolution  of  a  town  for 
raising  taxes  fails  to  designate  the  specific  purposes 
for  which  the  taxes  were  to  be  raised  does  not  "go  to 
the  groundwork"  of  the  tax,  and  necessarily  affect  ma- 
terially its  principle,  so  as  to  be  available  in  a  court  of 
equity  to  enjoin  or  restrain  its  collection.^^^  The 
honest  opinion  and  judgment  of  the  assessor  and  of  the 
board  of  review  must  be  conclusive,  unless  the  inequal- 
ities or  overvaluations  are  shown  to  be  so  gross  as  to 
be  evidence  of  bad  faith  or  arbitrary  judgment.^^^  The 
mere  failure  of  the  assessor  to  verify  the  assessment- 
roll  as  required  by  law,  does  not  necessarily  render  the 
taxes  apportioned  upon  such  assessment  unequal  or 
unjust.^"'*  All  reasonable  presumptions  must  be  made 
in  favor  of  the  regularity  of  proceedings  of  the  board 
of  review;  and  a  complaint  which  merely  states  that 
the  plaintiff  testified  before  the  board  as  to  the  value 
of  the  land,  and  that  the  board  refused  to  reduce  the 
valuation  in  accordance  with  his  testimony,  without 
stating  that  this  was  the  only  evidence  presented  on  the 
subject,  does  not  show  that  the  board  acted  arbitrarily, 
in  disregard  of  all  the  evidence  before  it,  so  as  to  sustain 
an  injunction.^**^ 

597  Anderson  v.  Douglas  County,  98  Wig.  393,  74  N.  W.  109. 

598  Chicago  &  N.  W.  Ey,  Co.  v.  Forest  County,  95  Wis,  80,  70  N. 
W.    77. 

599  Green  Bay  &  M.  Canal  Co.  v.  Outagamie  County,  76  Wis.  587, 
45   N.   W.   536. 

600  Fifield  v.  Marinette  County,  62  Wis.  532,  22  N.  W.  705,  crit- 
icising language  used  in  Marsh  v.  Supervisors  of  Clark  County,  42 
Wis.    502. 

«oi  Tainter  v.  Lucas,  29  Wis.  375. 


753  ENJOINING  TAXATION;   WISCONSIN.  S  461 

§  461.  Cloud  on  Title — Under  the  Wisconsin  statutes, 
a  tax  upon  lands,  where  the  proceedings,  are  not  void 
upon  their  face,  is  a  lien  thereon  from  the  time  of  the 
assessment;  and,  if  illegal,  it  constitutes  a  cloud  upon 
the  title,  before  as  well  as  after  the  tax  sale.  Equity 
will  therefore  interfere,  not  only  after  the  sale  to  cancel 
the  certificate,  but  before  a  sale,  to  declare  the  assess- 
ment void  and  restrain  the  collection.^'^^  r^\^Q  statute 
making  the  tax  deed  prima  facie  evidence  of  the  regu- 
larity of  all  the  proceedings,  illegalities  that  would 
probably  not  appear  on  the  face  of  the  tax  deed,  and 
could  only  be  shown  by  proof  dehors  the  deed,  render 
the  deed  a  cloud  on  title,  and  its  issuance  should  be 
enjoined.^"^ 

It  is  not  an  abuse  of  discretion  to  refuse  to  restrain 
by  preliminary  injunction  a  sale  of  lands  for  taxes 
pending  the  determination  of  a  controversy  as  to  their 
validity,  when  the  controversy  can  be  finally  concluded 
before  plaintiff's  title  can  be  disturbed  or  injuriously 
clouded  by  a  tax  deed.^*^^ 

Where  jurisdiction  has  attached  for  the  purpose  of 
canceling  a  tax  certificate  as  a  cloud  on  title,  the  court 
may  go  on  and  give  complete  relief  by  restraining  the 
sale  of  personal  property  which  had  been  seized  for  the 
tax,  although  for  the  latter  purpose  alone  a  court  of 
equity  would  not  have  interfered  by  injunction.^*^^ 

But  one  person  cannot  maintain  an  action  to  set 
aside  any  tax  upon  real  estate,  except  ui^ou  such  as  he 
owns,  or  has  some  interest  in;  and  two  persons  cannot 

602  Milwaukee  Iron  Co.  v.  Town  of  Hubbard,  29  Wis.  51. 

603  Jenkins  v.  Board  of  Supervisors  of  Eock  County,  15  Wis. 
11;   and  see   Dean  v.  City  of  Madison,  9  Wis.  402. 

604  Chicago  &  N.  W.  E.  Co.  v.  Langlade  County,  104  Wis.  373, 
80  N.  W.  598. 

605  Hamilton  v.  City  of  Fond   du  Lac,  25  Wis.  490. 

Equitable  Rfimedies,  Vol.  I  — 4S 


§  462  EQUITABLE  EEMEDIES.  754 

properly  be  joined  as  plaintiffs  in  the  same  action  to 
set  aside  taxes  which  are  a  lien  upon  their  separate 
property  only.^*^® 

§  462.  Payment  or  Tender. — Following  the  familiar 
principle  of  equity  jurisprudence  that  he  who  seeks 
equity  must  do  equity,  it  is  well  established  that  a  court 
of  equity  will  not  grant  relief  to  restrain  a  tax  sale, 
cancel  a  tax  certificate,  or  restrain  the  issue  of  a  tax 
deed  thereon,  except  upon  terms  that  the  taxes  be  first 
paid  to  which  there  are  no  objections,  or  which,  in  jus- 
tice and  equity,  the  property  owner  ought  to  pay.*^"^ 
This  doctrine,  though  supposed,  for  a  time,  to  have  been 
somewhat  discredited,^^^  has  since  been  repeatedly  af- 
firmed, and  stands  now  unassailable.^"^  Where  taxes 
are  legal,  or,  whether  strictly  legal  or  not,  are  just  and 
equitable,  and  are  joined  with  such  as  are  illegal  and 
inequitable,  the  illegal  excess,  if  it  can  be  separated, 
is  only  conditionally  voidable  in  equity,  the  condition 
being  payment  of  the  balance  of  the  taxes.^^°  A  com- 
plaint which  does  not  allege  in  direct  terms  the  injus- 
tice and  inequality  of  the  tax,  and  further  alleges  a  state 
of  facts  which,  if  proved  on  the  trial,  would  establish 
the  truth  of  the  general  allegation  of  its  injustice,  does 
not  state  a  cause  of  action  for  equitable  relief,  unless 

606  Gilkey  v.  City  of  Merrill,  67  Wis.  459,  30  N.  W.  733;  New- 
comb  V.  Horton,  18  Wis.  566;   Barnes  v.  Beloit,   19  Wis.  93. 

607  Wells  V.  Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W.  1071, 
and  cases  cited;  Fifield  v.  Marinette  County,  62  Wis.  532,  537,  22 
N.  W.  705. 

608  See   Marsh   v.   Supervisors   of   Clark   County,   42   Wis.   502. 

609  Wells  V.  Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W.  1071, 
and  cases  cited, 

610  Wells  V.  Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W. 
1071;  Mills  V.  Johnson,  17  Wis.  598,  603;  Bond  v.  City  of  Kenosha, 
17  Wis.  286;  Hersey  v.  Board  of  Supervisors  of  Milwaukee  County, 
16  Wis.   186,   82   Am.   Dec.   713. 


755  ENJOINING  TAXATION;   WISCONSIN.  §  463 

there  be  a  further  allegation  of  an  offer  to  pay  the 
taxes  justly  chargeable  to  the  property  of  the  plaintiff 
on  account  of  which  he  seeks  relief. ^^^ 

In  an  action  to  restrain  the  issue  of  a  tax  deed,  on 
the  ground  of  a  fraudulent  assessment,  v/here  it  was 
impossible  for  the  plaintiff  to  determine,  by  computa- 
tion or  otherwise,  what  amount  of  the  taxes  was  justly 
chargeable  against  his  lands,  an  allegation  of  payment 
or  tender  is  dispensed  with;  and  there  is  no  good  rea- 
son for  requiring  an  averment  of  willingness  to  pay,  as 
that  would  be  an  allegation  of  mere  mental  condition, 
of  no  benefit  to  the  defendant,  and  incapable  of  dis- 
proof.^^^  And  the  rule  requiring  payment  of  the  legal 
taxes  as  a  condition  of  relief  against  the  illegal  cannot 
be  applied  in  a  case  where  two  lots  are  assessed  to- 
gether as  the  property  of  a  person  who  did  not  own  and 
never  had  owned  one  of  them.^^^ 

§  463.  Special  Assessments. — It  has  been  repeatedly 
held  that  where  legal  authority  exists  to  make  local 
assessments  for  street  improvements,  and  sufficient  has 
been  done  in  an  attempt  to  comply  therewith  to  give 
the  municipality  jurisdiction  of  the  subject  in  the  given 
case,  subsequent  irregularities,  where  no  injustice  is 
shown,  are  immaterial  in  equity  as  against  the  duty  of 
the  property  owner  to  bear  his  just  share  of  the  ex- 
pense of  such  improvement.^^'*  Where  there  has  been 
a  substantial  compliance  with  statutory  requisites  in 

611  Fifield  V.  Marinette  County,  62  Wis.  532,  22  N.  W.  705;  Wis- 
consin Central  E.  Co.  v.  Ashland  County,  81  Wis.  10,  50  N.  W.  937; 
Kaehler  v.  Dobberpuhl,  56  Wis.  480,  14  N.  W.  644. 

612  Anderson  v.   Douglas  County,  98   Wis.  393,  74  N.  W.   109. 

613  Crane  v.  City  of  Janesville,  20  Wis.  305. 

614  Gleason  v.  Waukesha  County,  103  Wis.  225,  79  N.  W.  249; 
Hennessy  v.  Douglas  County,  99  Wis.  129,  74  N.  W.  983;  Wells  v. 
Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W.  1071. 


S  463  EQUITABLE  KEMEDIES.  756 

regard  to  the  imposition  and  collection  of  special  taxes 
or  legal  assessments,  and  the  complainant  is  unable  to 
show  that  any  injustice  has  been  done  to  him,  equity 
will  afford  him  no  relief  against  such  taxes  or  assess- 
ments.^^ ^ 

Cloud  on  title  is  the  ground  of  equitable  jurisdiction, 
as  in  cases  of  general  taxation.  A  court  of  equity  will 
interfere  to  prevent  a  cloud  on  the  plaintiff's  title, 
where  his  lands  are  threatened  to  be  sold  on  a  void  tax 
or  assessment,  whenever  the  defect  complained  of  is 
not  merely  formal,  but  is  substantial  and  important, 
and  would  not  appear  on  the  face  of  the  tax  deed.^'* 
Equity  will  restrain  a  sale  of  land  under  a  special  as- 
sessment that  is  void  for  want  of  authority  in  the  city 
council  to  make  it.  It  is  not  necessary  to  show,  as  in 
the  case  of  general  taxes,  in  order  to  obtain  equitable 
relief,  that  the  assessment  was  not  only  invalid,  but  in- 
equitable.^^'^ 

There  is  a  plain  ground  of  equity  jurisdiction  to  set 
aside  the  sale  of  lots  made  to  enforce  a  void  assessment 
for  the  purpose  of  changing  the  grade  of  a  street,  when 
it  is  found  that  the  lots  are  greatly  injured  and  ren- 

615  Gleason  v.  Waukesha  County,  103  Wis.  225,  79  N.  W.  24!); 
Hennessy  v.  Douglas  County,  99  Wis.  129,  74  N.  W.  983;  Wells  v. 
Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W.  1071. 

618  Mitchell  V.  City  of  Milwaukee,  18  Wis.  92,  97;  Myrick  v. 
City  of  La  Crosse,  17  Wis.  442;  Jenkins  v.  Board  of  Supervisors 
of  Eock  County,  15  Wis.  11. 

617  Dietz  V.  City  of  Neenah,  91  Wis.  422,  64  N.  W.  299,  65  N. 
W.  500,  distinguishing  Hixon  v.  Oneida  County,  82  Wis.  515,  52 
N.  W.  445.  In  the  one  case  there  is  an  antecedent  duty  or  equi- 
table burden  against  all  property  liable  to  taxation,  and  the  power 
to  raise  money  to  meet  public  necessities  and  obligations;  while  in 
the  case  of  the  special  assessment  "the  proceeding  here  initiated 
was  to  create  such  a  charge  or  duty,  and  the  law  under  which  the 
common  council  acted  was  unconstitutional  and  void;  so  no  duty 
or  charge  whatever  was  created." 


757  ENJOINING  TAXATION;   WISCONSIN.  {  463 

dered  less  valuable  by  the  change  of  grade.^^®  And  a 
void  assessment  may  be  canceled,  and  proceedings  to 
collect  it  enjoined,  although  the  proceedings  have  not 
been  carried  so  far  as  to  make  the  tax  a  lien  on  the 
plaintiff's  lots;  since  the  proceedings  will  necessarily 
create  a  cloud  on  the  plaintiff's  title.®^" 

Payment  or  Tender. — Special  taxes  levied  for  local 
improvements  are  to  be  regarded  as  one  of  the  constitu- 
tional methods  of  taxing  the  citizen  for  the  benefit  of 
the  public,  and  any  equitable  rule  which  applies  to 
other  constitutional  methods  must,  with  equal  pro- 
priety, be  applied  to  it.^^*^  When  the  statutory  requi- 
sites to  the  assessment  of  a  tax  for  a  street  improve- 
ment upon  abutting  property  are  all  complied  with  up 
to  the  time  of  filing  the  estimates  or  specifications  for 
letting  the  work, — that  is,  when  the  assessment  of  bene- 
fits has  been  in  all  respects  legally  made,  so  as  to  de- 
termine a  proper  basis  upon  which  to  apportion  the 
cost  of  the  improvement  properly  chargeable  to  abut- 
ting property, — and  the  subsequent  proceedings  result 
in  charging  such  property  an  excessive  amount  for  any 
cause,  the  owner  cannot  wait  until  the  improvement 
is  completed,  and  his  property  has  received  the  full 
benefit  thereof,  and  then  screen  himself  from  the  entire 
tax  because  of  the  illegal  excess.  If  such  excess  can 
be  determined  by  mere  computation,  or  without  proof, 
failure  to  tender  or  offer  to  pay  the  balance  before 
suit  will  be  fatal  to  any  claim  for  costs,  and  failure  to 
plead  an  offer  to  pay  fatal  to  the  cause  of  action.     If 

618  Liebermann  v.  City  of  Milwaukee,  89  Wis.  336,  61  N.  W.  1112. 

619  Beaser  v.  City  of  Ashland,  89  Wis.  28,  61  N.  W.  77.  So  the 
iesue  of  a  certificate  to  the  contractor  for  work  done  may  be  re- 
strained, the  assessment  being  wholly  invalid:  Johnson  v.  City  ot 
Milwaukee,   40   Wis.   315,   327. 

620  Mills  V.  Charleton,  29  Wis.  400,  418;  Wels  v.  Western  Paving 
etc.  Co.,  96  Wis.  116,  70  N.  W.  1071. 


{  464  EQUITABLE  REMEDIES.  758 

such  excess  cannot  be  determined  by  computation,  and 
without  proof,  the  court  should  determine  the  same, 
as  near  as  practicable,  to  a  reasonable  certainty,  from 
the  evidence  produced  on  the  trial,  and  require  the  pay- 
ment of  the  balance  as  terms  of  granting  relief  against 
such  excess,*'^^  The  rule  is  not  applied  when  the  as- 
sessment of  benefits  requisite  to  jurisdiction  to  impose 
any  tax  on  the  abutting  property  for  the  improvement 
was  not  made,*'^^  as  when  the  cost  of  the  improvement 
is  assessed  on  the  abutting  property  in  proportion  to 
the  front  footage,  without  regard  to  the  benefit  secured 
thereby,  as  required  by  statute;  since  the  defect  goes 
to  the  very  foundation  of  the  assessment,  and  makes  it 
necessarily  unequal. ^^^ 

§  464.  Wyoming. — The  statutes  in  this  state  provide 
for  the  remedy  of  injunction  to  restrain  the  illegal 
levy  or  collection  of  taxes.^^*  This  relief  "will  not  be 
allowed  on  account  of  the  mere  failure  of  the  taxing 
officers  to  fulfill  the  requirements  of  the  statute  in  the 
levy  and  assessment,  but  it  must  appear  that  the  tax 
itself  is  inequitable  for  the  reason  that  the  property 

621  Wells  V.  Western  Paving  etc.  Co.,  96  Wis.  116,  70  N.  W. 
1071.  See,  also,  Yates  v.  City  of  Milwaukee,  92  Wis.  352,  66  N. 
W.  248;  Meggett  v.  City  of  Eau  Claire,  81  Wis.  326,  51  N.  W. 
566;  Cook  v.  City  of  Eacine,  49  Wis.  243,  5  N.  W.  352  (the  sum 
which  plaintiff  ought  to  pay  being  definitely  ascertained  by  the 
proofs,  judgment  directed  restraining  collection  of  the  assessment 
in  case  plaintiff,  within  a  specified  time,  shall  pay  the  proper 
amount,  with  interest);  Mills  v.  Charleton,  29  Wis.  400,  418,  9  Am, 
Eep.  578  (excess  being  clearly  ascertainable  by  computation  its 
collection  restrained  only  on  condition  that  the  proper  amount  is 
paid). 

622  See  Hayes  v.  Douglas  County,  92  Wis.  429,  53  Am.  St.  Eep. 
926,  65  N.  W.  482,  31  L.  R.  A.  213. 

«23  Hayes  v.  Douglas  County,  supra, 
624  Eev.   Stats.    1899,    §    4172. 


759  ENJOINING  TAXATION,  WYOMING.  |  464 

was  not  taxable,  or  that  it  was  not  the  property  of  the 
complainant,  or  the  like."*^^^ 

A  mere  excessive  assessment  and  overvaluation  by  a 
board  of  equalization  will  not  be  revised  by  the  court, 
in  the  absence  of  a  showin*^-  of  fraud,^^®  and  such  errors 
as  assessment  of  land  in  the  wrong  district,  or  mistakes 
in  description  or  levy  en  masse  on  separate  parcels, 
are  not  a  ground  for  injunction,  when  the  owner  made 
no  effort  to  have  them  corrected  by  the  board  of  equal- 
ization.®^' 

625  Horton   v.    Driskell    (Wyo.),    77    Pac.    354. 

626  Eicketts  V.  Crewdson   (Wyo.),  79  Pac.   1042. 
827    Id. 


§  465  EQUITABLE  REMEDIES.  760 


CHAPTER  XX. 


INJUNCTION  AGAINST  EXERCISE  OF  THE  POWER 
OF  EMINENT  DOMAIN. 

ANALYSIS. 

§  4G5.     General    principle. 

§  466.     No  injunction  against  prosecution  of  condemnation  pro- 
ceedings. 
§§  467-470.     Eailroads  in   streets  and  highways, 

§  468.     Same — Fee  of  street  in  abutting  owner. 

§  469.     Same— Fee  of  street  in  municipality. 

§  470.     Same;    New    York    rule;    Elevated    Railroad    cases. 

§  471.     Changing   grade   of   streets;    other   uses   of   streets;    va- 
cating  streets. 

§  472.     Acquiescence. 

§  473.     Assessment    of    damages   by   the   court,   with    injunction 
as  alternative  to  their  payment. 

§  4G5.  General  Principle. — It  has  come  to  be  generally 
recoguized  that  injunction  against  the  unlawful  or  im- 
proper exercise  of  the  power  of  eminent  domain  con- 
stitutes an  independent  head  of  equity  jurisdiction,  un- 
controlled in  its  exercise  by  the  principles  which  regu- 
late injunctive  relief  against  trespass.  The  constitu- 
tional guaranty  that  "property  shall  not  be  taken  for 
public  use  without  just  compensation"  by  agents  of  the 
state  to  whom  this  power  is  delegated,  is  deemed  to  es- 
tablish a  right  of  so  high  and  sacred  a  character  that 
any  threatened  infringement  of  the  right  should  be  re- 
strained, without  consideration  of  the  inadequacy  of 
the  legal  remedy.  Injunction,  in  this  class  of  cases,  is 
a  matter  of  strict  right,  not  of  equitable  discretion; 
although  it  is  true  that  special  equities,  such  as  acqui- 
escence or  estoppel,  may  constitute  a  defense.  It  is 
eminently  true,  in  tjiis  connection,  that  "judges  have 


761  INJUNCTION;    EMINENT   DOMAIN.  §  465 

been  brought  to  see,  and  to  acknowledge,  contrary  to 
the  opinion  of  Chancellor  Kent,  that  the  common-law 
theory  of  not  interfering  with  persons  until  they  shall 
have  actually  committed  a  wrong  is  fundamentally  er- 
roneous; and  that  a  remedy  which  prevents  a  threat- 
ened wrong  is,  in  its  essential  nature,  better  than  a 
remedy  which  permits  a  wrong  to  be  done,  and  then 
attempts  to  pay  for  it  by  the  pecuniary  damages  which 
a  jury  may  assess."^  The  fundamental  principle  now 
generally  accepted  is  well  expounded  in  the  following 
extract  from  the  opinion  of  a  most  able  court,  and  is 
further  elucidated  in  the  excerpts  in  the  following  note : 
"The  principle  upon  which  a  court  of  equity  pro- 
ceeds, in  interfering  to  prevent  bodies  corporate  having 
compulsory  power  to  enter  upon,  take,  and  appropri- 
ate for  their  own  uses  the  lands  of  others,  differs  ma- 
terially from  the  principle  upon  which  it  intervenes  to 
prevent  the  commission  or  continuance  of  waste,  or  of 
nuisances,  or  of  trespasses,  when  only  private  rights, 
or  the  acts  of  persons,  natural  or  artificial,  not  having 
such  powers,  are  involved.  In  the  latter  class  of  cases, 
if  the  right  be  strictly  legal,  and  there  is  no  relation  of 
privity  between  the  parties,  it  is  of  the  essence  of  the 
jurisdiction  of  the  court  that  a  case  of  irreparable  in- 
jury should  be  shown — a  case  for  which  the  courts  of 

law  do  not  furnish  an    adequate   remedy It   is 

most  essential  to  the  preservation  of  the  rights  of  pri- 
vate property,  to  the  protection  of  the  citizen,  and  to 
the  preservation  of  the  best  interests  of  the  community, 
that  all  who  are  invested  with  the  right  of  eminent  do- 
main, with  the  extraordinary  power  of  depriving  per- 
sons, natural  or  artificial,  without  their  consent,  of 
their    property,    and    its    possession    and    enjoyment, 

1  3  Pom.   Eq.  Jur.,   §   1357,   quoted   and   applied  in  a   case   of  this 
character,  Payne  v.  Kansas  &  A.  Val.  E.  Co.,  46  Fed.  546,  553. 


§  465  EQUITABLE  REMEDIES.  762 

should  be  kept  in  the  strict  line  of  the  authority  with 
which  they  are  clothed,  and  compelled  to  implicit  obe- 
dience to  the  mandates  of  the  constitution.  A  court 
of  equity  will  intervene  to  keep  them  within  the  line  of 
authority,  and  to  compel  obedience  to  the  constitution, 
because  of  the  necessity  that  they  should  be  kept  within 
control,  and  in  subjection  to  the  law,  rather  than  upon 
the  theory  that  they  are  trespassers,  or  that  the  injury 
which  they  are  inflicting  is  irreparable.  The  owner  of 
the  land  has  the  right  to  say  that,  unless  they  keep 
within  the  strict  limits  prescribed  by  law,  they  shall 
not  disturb  him  in  the  possession  and  enjoyment  of  his 
property.  The  power  is  so  capable  of  abuse,  and  those 
who  are  invested  with  it  are  often  so  prone  to  its  arbi- 
trary and  oppressive  exercise,  that  a  court  of  equity, 
without  inquiring  whether  there  is  irreparable  injury, 
or  injury  not  susceptible  of  adequate  redress  by  legal 
remedies,  will  intervene  for  the  protection  of  the 
owner.  "^ 

2  East  &  West  E.  Co.  of  Alabama  v.  East  Tennessee,  V.  &  d. 
E.  Co.,  75  Ala.  280,  by  Brickell,  C.  J.;  Birmingham  Traction  Co.  v. 
Birmingham  Ry.  &  Elec.  Co.,  119  Ala.  129,  24  South.  368;  City  Coun- 
cil of  Montgomery  v.  Lemle,  121  Ala.  609,  25  South.  919;  Mobile  & 
M.  Ey.  Co.  V.  Alabama  Midland  Ey.  Co.,  123  Ala.  145,  26  South. 
324;  Western  E.  of  Alabama  v.  Alabama  G.  T.  E.  Co.,  96  Ala. 
272,  11  South.  483,  17  L.  E.  A.  474.  "Whenever  the  power  of  emi- 
nent domain  is  about  to  be  exercised  without  compliance  with  the 
conditions  upon  which  the  authority  for  its  exercise  depends,  courts 
of  equity  are  not  curious  in  analyzing  the  grounds  upon  which  they 
rest  their  interposition.  Equitable  jurisdiction  may  be  invoked  in 
view  of  the  inadequacy  of  the  legal  remedy  where  the  injury  is 
destructive  or  of  a  continuous  character,  or  irrej^iarable  in  its  na- 
ture; and  the  appropriation  of  private  property  to  public  use,  under 
color  of  law,  but  in  fact  without  authority,  is  such  an  invasion  of 
private  rights  as  may  be  assumed  to  be  essentially  irremediable, 
if,  indeed,  relief  may  not  be  awarded  ex  debito  justitiae";  Fuller, 
C.  J.,  in  D.  M.  Osborne  &  Co.  v.  Missouri  Pac.  E.  Co.,  147  U.  S.  248, 
13  Sup.  Ct.  299,  37  L.  ed.  155.  "There  are  numerous  cases  in  this 
eourt  wherein   equity   has  interfered   by   injunction   to   restrain   road 


763  INJUNCTION;    EMINENT    DOMAIN.  §  465 

While  the  above  seems  the  sounder  principle  on  which 
to  base  injunctive  relief  in  this  class  of  cases,  many 
courts  are  content  to  rest  it  on  the  general  doctrines 

supervisors  and  others  from  removing  or  interfering  with  fences, 
hedges,  watercourses,  and  the  like,  in  the  discharge  of  their  official 
duty.  Belief  in  these  cases  was  not  based  upon  the  grounds  of  the 
irreparable  character  of  the  injury  and  the  insolvency  of  the  de- 
fendants [citing  Bills  v.  Belknap,  36  Iowa,  583;  Grant  v.  Crow, 
47  Iowa,  632;  McCord  v.  High,  24  Iowa,  336;  Quihton  v.  Burton,  61 

Iowa,  471,   16  N.   W.  569] Justice    and    sound    public    policy 

demand  that  for  the  protection  of  both  the  landowner  and  the 
supervisor  the  question  of  the  legality  of  the  supervisor's  proposed 
act  should  be  determined  before  the  injury  should  be  done  to  the 
farm,  and  the  liability  of  the  latter  should  be  incurred.  The  law 
provides  a  remedy  for  the  settlement  of  the  controversy  between 
the  parties,  in  advance  of  the  injury  to  the  one  and  the  liability 
incurred  by  the  other,  by  an  action  in  chancery,  wherein  an  in- 
junction will  suspend  the  act  of  the  supervisor  until  the  question 
of  law  and  facts  involved  in  the  controversy  are  judicially  settled": 
Bolton  V.  McShane,  67  Iowa,  207,  25  N.  W.  135,  by  Beck,  Ch.  J. 
"It  is  not  disputed  that  injunction  is  the  proper  remedy  against 
the  appropriation  of  land  for  the  use  of  a  public  corporation  which 
has  not  acquired  a  right  to  the  proposed  use  either  by  purchase  or 
by  condemnation;  and,  contrary  to  the  general  rule  that  equitable 
relief  is  granted  only  when  equitable  considerations  require  it,  the 
injunction  in  such  cases  may  be,  and  perhaps  more  frequently  than 
otherwise  is,  sought  in  vindication  of  a  purely  legal  right;  and,  if 
the  technical  right  and  a  threatened  infraction  of  it  be  established, 
the  relief  will  be  granted  without  inquiry  into  the  general  equities 
of  the  case.  By  this  we  do  not  mean  that  a  specific  equity,  like 
an  estoppel,  may  not  be  a  defense  to  such  a  suit;  but,  if  a  complete 
defense  be  not  shown,  the  court  will  not  refuse  the  relief  on  grounds 
of  equitable  discretion,  as  it  might  do  in  a  suit  for  specific  per- 
formance or  rescission  or  other  cause  involving  no  special  consti- 
tutional or  statutory  right  of  such  a  nature  as  to  be  capable  of 
vindication  only  by  injunction":  Bass  v.  Metropolitan  West  Side 
El.  E.  Co.,  82  Fed.  857,  27  C.  C.  A.  147,  39  L.  E.  A.  711,  by  Woods, 
Cir.  J.  "In  cases  of  this  character  courts  of  equity  have  acted  on 
broader  principles  [than  in  ordinary  casesj,  and  have  adopted  as  a 
rule  that  an  injunction  will  be  granted  to  prevent  a  railway  com- 
pany from  exceeding  the  power  granted  in  their  charter The 

courts  do  not  require  when  the  effort  is  manifested  by  a  railway 
company  to  wrongfully  appropriate  private  property,  or  force  their 
structures  to  places  not  authorized,  that  there  should  be  a  want  of 


§  465  EQUITABLE  EEMEDIES.  76t 

concerning  irrepar.able  injury  of  a  permanent  character, 
going  to  the  destruction  of  the  inheritance.^  On  which- 
ever ground  the  jurisdiction  is  based,  the  rule  is  now 

remedy  at  law":  Cobb  v.  Illinois  &  St.  L.  E.  &  C.  Co.,  68  111.  233. 
See,  also,  in  support  of  the  view  that  the  question  of  irreparable 
injury  is  not  involved,  but  that  injunction  is  a  matter  of  right: 
Eidemiller  v.  Wyandotte  City,  2  Dill.  376,  Fed.  Cas.  No.  4313,  by 
Dillon,  Cir.  J.,  as  reported  in  the  Federal  Cases;  observations  of 
Brewer,  J.,  in  McElroy  v.  Kansas  City,  21  Fed.  257,  quoted  post,  § 
471;  Sidener  v.  Norristown  Turnpike  Co.,  23  Ind.  623;  Western 
Maryland  Ey.  Co.  v.  Owings,  15  Md.  199,  74  Am.  Dec.  563  ("the 
nature  of  the  damage  complained  of,  whether  irreparable  or  not, 
has  nothing  to  do  with  the  question");  Commonwealth  v.  Pitts- 
burgh &  C.  E.  Co.,  24  Pa.  St,  159,  62  Am.  Dec.  342;  Bird  v.  Wilming- 
ton &  M.  E.  Co.,  8  Eich.  Eq.  (S.  C.)  46,  64  Am.  Dec.  739;  Searle  v. 
City  of  Lead,  10  S.  D.  312,  73  N.  W.  101,  39  L.  E.  A.  345;  Travis 
County  V.  Trogdon  (Tex.  Civ.  App.),  29  S.  W.  46;  Hodges  v.  Sea- 
board &  E.  E.  Co.,  88  Va.  653,  14  S.  E.  380;  Manchester  Cotton 
Mills  V.  Town  of  Manchester,  25  Gratt.  828;  Foley  v.  Doddridge 
County  Court,  54  W.  Va.  16,  46  S.  E.  246;  Brown  v.  City  of  Seattle, 
5  Wash.  35,  31  Pac.  313,  32  Pac,  214,  18  L.  E.  A.  161;  Bohlman  v. 
Green  Bay  &  M.  E.  Co.,  40  Wis.  157;  Stolze  v.  Milwaukee  &  L.  W. 
E.  Co.,  104  Wis.  47,  80  N.  W.  68;  Lewis,  Eminent  Domain,  §  632. 

Where,  as  is  usual  in  recent  state  constitutions,  the  provision  is 
that  "property  shall  not  be  taken  for  public  use,  unless  compensa- 
tion is  first  made  or  tendered,"  it  is  obvious  that  injunction  is  the 
only  remedy  by  which  the  provision  can  be  enforced  according  to  its 
terms:  See  Searle  v.  City  of  Lead,  10  S.  D.  312,  73  N.  W.  101,  39 
L.  E.  A.  345;  Travis  County  v.  Trogdon  (Tex.  Civ.  App.),  29  S.  W. 
46;  Brown  v.  City  of  Seattle,  5  Wash.  35,  31  Pac.  313,  32  Pac.  214, 
18  L.  E.  A.  161. 

3  See  Bonaparte  v.  Camden  &  A.  E.  Co.,  1  Baldw.  218,  Fed.  Cas. 
No.  1617;  Eidemiller  v.  Wyandotte  City,  2  Dill.  376,  Fed.  Cas.  No. 
4313  (as  reported  in  Dillon's  Eeports);  Payne  v.  Kansas  &  A.  Val.  E, 
Co.,  46  Fed.  546;  Ex  parte  Martin,  13  Ark.  (8  Eng.)  198,  58  Am.  Dec. 
321;  Commissioners  v.  Durham,  43  111.  86;  City  of  Peoria  v.  Johnston, 
56  111.  45;  Lowery  v.  City  of  Pekin,  186  111.  387,  57  N.  E.  1062,  51  L.  E. 
A.  301;  Erwin  v.  Fulk,  94  Ind.  235;  City  of  New  Albany  v.  White,  100 
Ind.  206;  Kern  v.  Isgrigg,  132  Ind.  4,  31  N.  E.  455  (contempt  proceed- 
ings not  an  adequate  remedy);  Welton  v.  Dickson,  38  Neb.  767,  41 
Am.  St.  Eep.  771,  57  N.  W.  559,  22  L.  E.  A.  496;  Bigler's  Exr.  v. 
Penn.  Canal  Co.,  177  Pa.  St.  28,  35  Atl.  112;  post,  chapter  XXIII, 
"Trespass,"  §§  495,  499.  "The  injury  complained  of  as  impending 
over  his  property  is,  its  permanent  occupation  and  appropriation  to  a 


765  INJUNCTION;    EMINENT   DOMAIN.  §  465 

almost  universal  that  "an  entry  upon  private  property 
under  color  of  the  eminent  domain  power  will  be  en- 
joined until  the  right  to  make  such  entry  has  been  per- 
fected by  a  full  compliance  with  the  constitution  and 
the  laws,"  whether  such  compliance  is  lacking  either 
through  failure  to  pay,  tender,  or  deposit  just  com- 
pensation as  required  by  law,  or  through  invalidity  of 
the  condemnation  proceedings,  or  of  the  statute  under 
which  the  right  to  enter  is  claimed.* 

continuing  public  use,  which  requires  the  divestiture  of  his  whole  right, 
its  transfer  to  the  company  in  full  property,  and  his  inheritance  to  be 
destroyed  as  effectively  as  if  he  had  never  been  its  proprietor.  No  dam- 
ages can  restore  him  to  his  former  condition,  its  value  to  him  is  not 
money  which  money  can  replace,  nor  can  there  be  any  specific  compen- 
sation or  equivalent;  his  damages  are  not  pecuniary  (^vide,  7  Johns. 
731),  his  objects  in  making  his  establishment  were  not  profit,  but 
repose,  seclusion,  and  a  resting  place  for  himself  and  family.  If 
these  objects  are  about  to  be  defeated,  if  his  rights  of  property  are 
about  to  be  destroyed,  without  the  authority  of  law;  or  if  lawless 
danger  impends  over  them  by  persons  acting  under  color  of  law,  when 
the  law  gives  them  no  power,  or  when  it  is  abused,  misapplied,  ex- 
ceeded, or  not  strictly  pursued,  and  the  act  impending  would  subject 
the  party  committing  it  to  damages  in  a  court  of  equity  for  a  tres- 
pass, a  court  of  equity  will  enjoin  its  commission":  Bonaparte  v.  Cam- 
den &  A.  E.  Co.,  1  Baldw.  218,  Fed.  Cas.  No.  1617,  per  Baldwin,  J. 

4  Lewis,  Eminent  Domain,  §  632,  and  cases  cited.  In  addition  to 
the  cases  cited  in  the  preceding  notes,  see  St.  Louis  &  S,  F.  E.  Co. 
V.  Southwestern  T.  &  T.  Co.,  121  Fed.  276,  58  C.  C.  A.  198;  Midland 
Ey.  Co.  V.  Smith,  113  Ind.  233,  15  N.  E.  256;  Hudson  v.  Voreis,  134 
Ind.  602,  34  N.  E.  503  (proceedings  for  laying  out  highway  invalid); 
Town  of  Hardinsburg  v.  Cravens,  148  Ind.  1,  47  N.  E.  153  (taking  land 
for  street  without  compensation  or  notice) ;  City  of  Fort  Wayne  v. 
Fort  Wayne  &  T.  E.  Co.  (Ind.),  48  N.  E.  342  (same);  State  ex  rel. 
Cotting  V.  Sommerville,  104  La.  74,  28  South.  977  (injunction  not  dis- 
solved upon  giving  bond);  Spurlock  v.  Dorman,  182  Mo.  242,  81  S. 
W.  412;  Mayor  of  Frederick  v.  Groshon,  30  Md.  436,  96  Am. 
Dec.  591;  Kime  v.  Cass  County  (Neb.),  99  N.  W.  546  (tak- 
ing land  for  street);  Folley  v.  Passaic,,  26  N.  J.  Eq.  216; 
Stratford  v.  City  of  Greenboro,  124  N.  C.  127,  32  S.  E.  394  (appro- 
priating property  for  private  use  by  municipality) ;  Ft.  Worth  & 
R.  G.  E.  Co.  V.  Jennings,  76  Tex.  373,  13  S.  W.  270,  8  L.  E.  A.  180; 


§  465  EQUITABLE  EEMEDIES.  7C6 

Cummings  v.  Kendall  County,  7  Tex.  Civ.  App.  164,  26  S.  W.  439 
(opening  road;  no  notice,  and  no  order  allowing  damages);  City  of  San 
Antonio  v.  Sullivan,  23  Tex.  Civ.  App.  658,  57  S.  W.  45  (unauthorized 
changes  in  location  of  street  after  damages  assessed) ;  Olson  v.  City 
of  Seattle,  30  Wash.  687,  71  Pac.  201  (dictum);  Boughner  v.  Town  of 
Clarksburg,  15  W.  Va.  394;  Wenger  v.  Fisher  (W.  Va.),  46  S.  E.  695; 
Baier  v.  Hosraer,  107  Wis.  380,  83  N.  W.  645. 

A  few  cases  appear  to  be  cvntra  to  the  weight  of  authority  or  de- 
pend on  special  facts:  Atchison,  T.  &  S.  F.  E.  Co.  v.  Meyer,  62  Kan. 
Q?Q),  64  Pae.  597  (no  injunction  against  improvement  of  roadbed 
of  railroad,  when  injury  slight  and  capable  of  compensation) ;  Jersey 
City  v,  Gardner,  33  N.  J.  Eq.  622  (no  injunction  against  use  for 
street  of  land  condemned  for  street  purjjoses,  after  damages  assessed; 
remedy  at  law  adequate);  Thomas  v.  Grand  View  Beach  E.  Co.,  76 
Hun,  601,  28  N.  Y.  Supp.  201  (operation  of  railroad  already  con- 
structed not  restrained,  when  ejectment  an  adequate  remedy) ;  Ealeigh 
&  W.  Ey.  Co.  V.  Glendon  etc.  Co.,  112  N.  C.  661,  17  S.  E.  77;  Welling- 
ton &  P.  E.  Co.  v.  Cashie  &  C.  E.  &  L.  Co.,  116  N.  C.  924,  20  S.  E. 
964;  Cherry  v.  Matthews,  25  Or.  484,  36  Pac.  529  (no  injunction  where 
constitution  does  not  require  prepayment  of  damages);  Delaware 
County's  Appeal,  119  Pa.  St.  159,  13  Atl.  62  (power  of  taxation  is 
sufficient  security  when  property  is  taken  or  damaged  by  a  municipal 
corporation);  Colby' v.  City  of  Spokane,  12  Wash.  690,  42  Pac.  112; 
Eockwell  V.  Bowers,  88  Iowa,  88,  55  N.  W.  1  (adequate  remedy  by 
certiorari  to  review  proceedings  for  condemnation  of  street).  That 
injunction  will  not  issue  where  the  defendant's  title  is  uncertain 
or  in  dispute,  see  Troy  &  B.  E.  Co.  v.  Boston,  H.  T.  &  W.  Ey.  Co., 
86  N.  Y.  107;  Kanawha  G.  T.  &  E.  E.  Co.  v.  Glen  Jean,  L.  L.  &  D. 
W.  E.  Co.,  45  W.  Va.  119,  30  S.  E.  86;  but  that  mere  denial  of  plain- 
tiff's title  is  not  sufficient  to  prevent  relief,  see  Birmingham  Trac- 
tion Co.  V.  Birmingham  E.  &  E.  Co.,  119  Ala.  129,  24  South.  368; 
Mobile  &  M.  Ey.  Co.  v.  Alabama  Midland  Ey.  Co.,  123  Ala.  145,  26 
South.  324;  Lewis,  Eminent  Domain,  §  633.  The  last  four  cases  eon- 
cern  the  condemnation  of  a  right  of  way  across  the  property  of  a  rival 
railroad.  That  the  owner  of  an  easement  for  the  use  of  water  for 
mill  purposes  cannot  restrain  the  taking  of  water  by  a  municipality 
from  the  mill  pond,  if  he  is  not  the  owner  of  the  land  covered  by  the 
pond,  unless  his  easement  is  materially  impaired,  see  Bass  v.  City  of 
Fort   Wayne,   121   Ind.   389,   23   N.  E.   259. 

The  giving  of  a  sufficient  bond  to  pay  damages  has  been  held 
to  dispense  with  the  necessity  of  a  preliminary  injunction:  Davis  v. 
Port  Arthur  Channel  &  Dock  Co.,  87  Fed.  512,  31  C.  C.  A.  99. 

That  the  purchase  of  the  land,  pending  condemnation  proceedings, 
b}-  the  president  of  a  rival  railroad,  for  the  purpose  of  delay  and 
obstruction,    may    defeat   the    right    to    an    injunction,   see   Piedmont 


767  INJUNCTION;    EMIlSiENT   DOMAIN.  §  465 

It  appears  that  the  entry  may  be  enjoined  pending 
appeal  from  the  condemnation  proceedings,^  unless  the 
statute  declares  that  the  right  to  enter  is  not  suspended 
by  appeal,  in  which  case  the  constitutional  guaranty  is 
sufficiently  satisfied  by  the  award  of  damages  by  the 
inferior  tribunal,  and  the  payment,  tender,  or  deposit 
of  the  same.^ 

The  above  cases  illustrate  the  principle  as  applied  to 
railways,  streets  and  highways.  Illustrations  of  its 
application  to  takings  for  other  public  uses  are  ap- 
pended in  the  note.'^ 

&  C.  Ey.  Co.  V.  Speelman,  67  Md.  260,  10  Atl.  77,  293;  Ocean  City 

B.  Co.  V.  Bray,  55  N.  J.  Eq.  101,  35  Atl.  839;  Kanawha,  G.  T.  &  £. 
R.  Co.  V.  Glen  Jean,  L.  L.  &  D.  W.  E.  Co.,  45  W.  Va.  119,  30  S.  E.  86. 

The  eminent  domain  power  should  be  distinguished  from  the  police 
power;  the  exercise  of  the  latter  by  a  city  in  keeping  open  a  street 
which  had  been  used  by  the  public  for  many  years  does  not  present 
a  proper  case  for  an  injunction  at  the  suit  of  one  claiming  to  own  the 
land  comprised  within  the  street:  City  of  Chicago  v.  Wright,  69  III. 
318. 

5  Eidemiller  v.  Wyandotte  City,  2  Dill.  376,  Fed.  Cas.  No.  4313; 
City  of  Terra  Haute  v.  Farmers'  Loan  &  T.  Co.,  99  Fed.  838,  40  C. 

C.  A.  117  (where  fraud  or  failure  to  comply  with  statutory  require- 
ments); City  of  Kansas  v.  Kansas  Pac.  Ry.  Co.,  18  Kan.  331;  Travis 
County  V,  Tragdon  (Tex.  Civ.  App.),  29  S.  W.  46. 

6  Bauchman  v.  Heinselman,  180  111.  251,  54  N.  E.  313;  Central 
Branch  U.  P.  E.  Co.  v.  Atchison  T.  &  S.  F.  E.  Co.,  28  Kan.  463; 
Chicago  &  A,  E.  Co.  v.  Maddox,  92  Mo.  469,  4  S.  W.  417;  Shoppert 
V.  Martin,  137  Mo.  455,  38  S.  W,  967  (no  injunction  where  owner 
refuses  to  prosecute  appeal);  Lionbergcr  v.  Pelton,  62  Meb.  252,  86 
N.  W.  1067. 

7  An  injunction  will  issue  when  private  property  is  about  to  be 
taken  without  compensation  for  the  following  purposes:  For  a  ditch — 
McGhee  Irr.  Ditch  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W.  398;  for  a 
reservoir— Gardner  v.  Village  of  Newburgh,  2  Johns.  Ch.  162,  7  Am. 
Dec.  526;  for  a  school-house — Church  v.  Joint  School  District,  55 
Wis.  399,  13  N.  W.  272.  It  is  proper  when  an  attempt  is  made, 
without  compensation,  to  flood  land — Wilmington  Water  Power  Co. 
v.  Evans,  166  111.  548,  46  N.  E.  1083;  or  to  build  a  pier  in  a  mill- 
race — McMillian  v.  Lauer  (Sup.  Ct.),  24  N.  Y.  Supp.  951.  lakewise, 
it  will  issue  where  a  city,  without  compensation,  discharges  surface 


§  466  EQUITABLE  EEMEDIES.  768 

§  466.  No  Injunction  Against  Prosecution  of  Condemna- 
tion Proceedings. — It  is  to  be  observed  that  where  in- 
junction is  granted  against  the  exercise  of  the  power 
of  eminent  domain,  the  entry  upon  or  appropriation 
of  the  plaintiff's  land  is  the  specific  act  enjoined.  No 
injunction  lies  against  the  prosecution  of  condemna- 
tion proceedings  when  the  matter  which  is  set  up  as  a 
ground  for  injunction  may  be  urged  as  a  defense  in 
such  proceedings.^ 

water  at  a  certain  point  in  such  a  manner  as  to  make  a  channel 
through  plaintiff's  land:  Miller  v.  Morristown,  47  N.  J.  Eq.  62,  20 
Atl.  61.  When  property  has  once  been  taken  for  public  use,  it  can- 
not be  taken  again,  unless  there  is  an  express  authorization.  A  pre- 
liminary injunction  will  issue  to  prevent  a  city  from  taking  rail- 
road property  for  street  purposes  until  it  can  be  determined  whether 
the  two  uses  can  exist  together:  City  Council  of  Augusta  v.  Georgia 
R.  &  B.  Co.,  98  Ga.  161,  26  S.  E.  499.  An  injunction  will  issue 
against  a  taking  for  an  unauthorized  use:  Bigler's  Exr.  v.  Penn.  Coal 
Co.,  177  Pa.  St.  28,  35  Atl.  112,  38  Wkly.  Not.  Cas.  408. 

8  See  Lewis,  Eminent  Domain,  §  646,  and  cases  cited;  Eureka  & 
K.  E.  R.  Co.  V.  Cal.  &  N.  Ry.  Co.,  103  Fed.  897,  902  (proceedings 
by  two  rival  railroads  to  condemn  the  same  land;  procedure  provided 
by  statute);  Black  Hills  &  N.  W.  R.  Co.  v.  Tacoma  Mill  Co.,  129 
Fed.  312,  63  C.  C.  A.  544;  St.  Louis  &  S.  F.  R.  Co,  v.  Southwestern 
T.  &  T.  Co.,  121  Fed.  276,  58  C.  C.  A.  198;  Birmingham  Ry.  &  Elec. 
Co.  V.  Birmingham  Traction  Co.,  121  Ala.  475,  25  South.  777  (no 
injunction,  though  the  court  in  which  the  proceedings  are  pending 
haa  no  jurisdiction;  adequate  remedy  by  appeal  or  prohibition,  etc.); 
Winkler  v.  Winkler,  40  111.  179;  East  St.  Louis  Connecting  R.  Co.  v. 
East  St.  Louis  Union  E.  Co.,  108  111.  265  (no  injunction  against 
rival  railroad  condemning  tracks  for  crossing) ;  Chicago  &  N.  W.  Ry. 
Co.  V.  City  of  Chicago,  151  111.  348,  37  N.  E.  842  (question  of  con- 
demning for  street  property  already  taken  for  public  use);  Smith 
V.  Goodknight,  121  Ind.  312,  23  N.  E.  148;  Boyd  v.  Logansport,  R. 
&  N.  T.  Co.,  161  Ind.  587,  69  N.  E.  398;  Waterloo  Water  Co.  v. 
Hoxie,  89  Iowa,  317,  56  N.  W.  499  (question  of  condemning  property 
already  appropriated  to  public  use) ;  Western  Maryland  R.  Co.  v. 
Patterson,  37  Md.  125;  Detroit,  G.  H.  &  M.  Ry.  Co.  v.  City  of  De- 
troit, 91  Mich.  444,  52  N.  W.  52;  National  Docks  R.  Co.  v.  Central 
E.  Co.,  32  N.  J.  Eq.  755,  767;  Kip  v.  New  York  &  H.  R.  Co.,  6  Hun 
(N.  Y.),  2i  (question  of  constitutionality  of  statute  authorizing  con- 


769  INJUNCTION;   EMINENT    DOMAIN.  {  467 

§  467.  Railroads  in  Streets  and  Highways. — In  approach- 
ing a  consideration  of  the  vexed  subject  of  the  abutting 
owner's  remedy  in  equity  against  railroads  of  various 
kinds  in  streets,  it  is  necessary  first  to  lay  to  one  side 
two  classes  of  cases:  (1)  Those  holding  that  a  railroad 
of  some  particular  sort  is  a  legitimate  and  proper  use 
of  the  street  or  highway,  and  does  not  create  an  addi- 
tional burden  or  servitude.  This  is  generally  held  of 
horse  and  electric  railroads,  while  the  contrary,  at  the 
present  day,  is  generally  held  of  steam  railroads.  If  tha 
particular  use  is  held  to  be  a  proper  and  legitimate 
one,  the  abutting  owner  has  no  substantive  right  to  be 
protected  by  an  injunction.*     (2)  Cases  where  the  rail- 

demnation) ;  Grafton  &  B.  E.  Co.  v.  Buckhannon  &  N.  R.  Co.  (W. 
Va.),  49  S.  E.  32.  See,  also,  Morris  &  E.  E.  Co.  v.  Hoboken  &  M.  E. 
Co.  (N.  J.  Eq.),  59  Atl.  332.  See,  however,  Colby  v.  Village  of  La 
Grange,  65  Fed.  554,  where  it  seems  to  be  held  that  the  proceed- 
ings may  be  enjoined  when  they  are  brought  for  a  wholly  unauthor- 
ized purpose.  See,  also,  Eiley  v.  Charleston  Union  Station  Co.,  67 
S.  C.  84,  45  S,  E.  149;  Chestatee  Pyrites  Co,  v.  Cavenders  Creek  G. 
M.  Co.,  119  Ga.  354,  100  Am.  St.  Eep.  174,  46  S.  E.  422. 

In  Schneider  v.  City  of  Eochester,  160  N.  Y.  165,  54  N.  E.  721,  re- 
versing 33  App.  Div.  458,  53  N.  Y.  Supp.  931,  the  city,  being  dis- 
satisfied with  the  award  of  commissioners  in  proceedings  to  open  a 
street,  sought  to  apply  for  the  appointment  of  new  commissioners; 
this  was  enjoined,  at  the  suit  of  the  property  owner.  The  latter 
had  no  remedy  by  appeal  from  the  order  of  appointment,  and  thus 
might  be  subjected  to  all  the  expense  and  trouble  of  defending  her 
title  or  securing  her  rights  before  numerous  commissioners  successively 
appointed. 

9  Cases  holding  steam  railroad  not  an  "additional  servitude"; 
Moses  V.  Pittsburgh,  Pt.  "Wayne  &  C.  R.  Co.,  21  111.  516  (since  over- 
ruled); Lexington  &  O.  E.  E.  Co.  v.  Applegate,  8  Dana  (Ky.),  289, 
33  Am.  Dec.  497;  Henry  Gaus  &  Sons  Mfg.  Co.  v.  St.  Louis,  K.  &  N. 
W.  Ey.  Co.,  113  Mo.  308,  20  S.  W.  658,  18  L.  E.  A.  339;  Decker  v. 
Evansville  Suburban  &  N.  Ey.  Co.,  133  Ind.  493,  33  N.  E.  349.  See 
Dillon,  Mun.  Corp.  (4th  ed.),  §  725   (576). 

Cases  holding  horse  or  electric  railway  constructed  in  the  usual 
manner  not  an  additional  servitude:  Chicago,  B.  &  Q.  R.  Co.  v.  West 
Chicago  St,  E.  Co.,  156  111.  255,  40  N.  E.  1008,  29  L.  E,  A,  485;  Snyder 

Equitable  Remedies,  Vol.  I — 49 


S  4G7  EQUITABLE    REMEDIES.  7T0 

road  is  constructed  without  proper  authority,  and  the 
question,  therefore,  is  one,  not  of  restraining  the  exer- 
cise of  the  eminent  domain  power,  but  of  the  remedy 
of  the  abutting  owner,  as  one  specially  injured,  to  re- 
strain a  public  nuisance.^^ 

Granting  that  the  railroad  whose  construction  or  op- 
eration is  sought  to  be  enjoined  creates  an  "additional 
servitude"  in  the  street,  it  is  found  that  the  abutting 
owner's  remedial  right  to  an  injunction,  or  even  hia 
right  to  any  remedy  whatever,  is,  in  many  jurisdictions, 
made  to  depend  upon  the  fact  of  his  ownership  of  the 
fee  of  the  land  included  in  the  street  If  the  fee  is  in 
the  abutting  owner,  affected  only  by  an  easement  in 
the  public  for  legitimate  street  purposes,  a  permanent 
diversion  of  the  street  to  other  purposes,  authorized  by 
the  proper  public  authority,  constitutes  a  "taking"  of 
such  owner's  property  which  will  readily  be  enjoined 
if  just  compensation  is  not  provided.  The  case  is  oth- 
erwise if  the  ownership  of  the  street  is  in  the  munici- 
pality.    This  rule  has  been  most  strongly  reprobated 

V,  Ft.  Madison  St.  Ry.  Co.,  105  Iowa,  28-i,  75  N.  W.  179,  41  L.  R.  A. 
345;  Louisville  Bagging  Mfg.  Co.  v.  Central  Pass.  Ry.  Co.,  95  Ky. 
50,  44  Am.  St.  Rep.  203,  2.3  S.  W.  592;  Green  v.  City  &  Suburban  Ry. 
Co.,  78  Md.  294,  44  Am.  St.  Rep.  288,  28  Atl.  626;  Poole  v.  Falls 
Road  Elec.  Ry.  Co.,  88  Md.  533,  41  Atl.  1069;  Nagel  v.  Lindell  Ry. 
Co.,  167  Mo.  89,  66  S.  W.  1090;  Hinchman  v.  Paterson  Horse  R.  Co., 
17  N.  J.  Eq.  (2  C.  E.  Greene)  75,  86  Am.  Dee.  252;  Morris  &  E.  R. 
Co.  V.  Newark  Pass.  Ry.  Co.,  51  N.  J.  Eq.  379,  29  Atl.  184;  West 
Jersey  R.  Co.  v.  Camden,  G.  &  W.  Ry.  Co.,  52  N.  J.  Eq.  1,  29  Atl. 
423;  Budd  v.  Camden  Horse  R.  Co.,  61  N.  J.  Eq.  543,  48  Atl.  1028; 
Aycock  V.  San  Antonio  Brewing  Assn.,  26  Tex.  Civ.  App.  341,  63  S. 
W.  953  (street  railway  for  transporting  freight);  Birmingham  Trac- 
tion Co.  V.  Birmingham  Ry.  &  Elec.  Co.,  119  Ala.  137,  24  South.  502, 
43  L.  R.  A.  233,  and  exhaustive  citation  of  authorities;  Dillon,  Mun. 
Corp.   (4th  ed.),  §§   722,  723. 

10  See,  for  example,  Garnet  v.  Jacksonville,  St.  A.  «Sb  H.  R.  R.  Co., 
20  Fla.  889;  Birmingham  Traction  Co.  v.  Birmingham  Ry.  &  Elec.  Co., 
119  Ala.  137,  24  South.  502,  43  L.  R.  A.  233.  Post,  chapter  XXIV, 
Public  Nuisance. 


771  INJUNCTION;    EMINENT   DOMAIN.  S  468 

by  eminent  writers,  as  making  the  owner's  remedial  or 
substantive  rights  depend  on  the  merest  technicality; 
and  it  was  thought  that  the  departure  from  the  rule  by 
the  courts  of  New  York  in  the  Elevated  Railroad  cases 
marked  a  period  of  transition,  and  pointed  to  the  even- 
tual overthrow  of  the  rule.  It  can  hardly  be  said  that 
that  result  has  yet  been  reached. 

§  468.  Same;  Fee  of  Street  in  Abutting  Owner. — It  is 
the  almost  universal  rule,  that  the  owner  of  land  abut- 
ting upon  a  public  street,  who  owns  the  fee  in  such 
street  subject  to  the  public  easement,  can  enjoin  the 
laying  of  tracks,  and  the  use  and  occupation  of  such 
street  by  a  steam  railroad  company  under  authority 
of  a  municipal  ordinance,  in  such  manner  as  to  create 
an  additional  servitude  upon  the  street,  where  no  com- 
pensation to  such  owner  has  been  ascertained  or  made.^^ 

11  Bond  V.  Pennsylvania  Co.,  171  111.  508,  49  N.  E.  545,  reversing 
69  111.  App.  507;  O'Connell  v.  Chicago  Terminal  Transfer  Co.,  184 
111.  308,  56  N.  E.  355;  Kock  Island  &  P.  E.  Co.  v.  Johnson,  204  111. 
488,  68  N.  E.  549  (injunction  against  laying  second  track);  O'Con- 
nor V.  Southern  Pac.  R.  Co.,  122  Cal.  681,  55  Pac.  688;  Schurmeier 
V.  St.  Paul  &  P.  E.  Co.,  10  Minn.  82  (Gil.  59),  88  Am.  Dec.  59;  Lewis 
V.  Pennsylvania  R.  Co.  (N,  J.  Eq.),  33  Atl.  932;  Williams  v.  New  York 
Cent.  E.  Co.,  16  N.  Y.  97,  69  Am.  Dec.  651;  Henderson  v.  New  York 
Central  E.  Co.,  78  N.  Y.  423;  Hodges  v.  Seaboard  &  E.  E.  Co.,  88 
Va.  653,  14  S.  E.  380;  Ford  v.  Chicago  &  N.  W.  E.  Co.,  14  Wis.  609, 
80  Am.  Dec.  791;  Coatsworth  v.  Lehigh  Val.  E.  Co.,  156  N.  Y.  451, 
51  N.  E.  301;  Mattlage  v.  New  York  El.  E.  Co.,  35  N.  Y.  Supp.  704, 
14  Misc.  Eep.  291,  affirmed  without  opinion,  157  N.  Y.  708,  52  N.  E. 
1124;  and  see  cases  cited  in  Lewis,  Eminent  Domain,  §  635,  note  2. 
In  the  few  cases,  chiefly  in  New  York,  where  a  horse  or  electric  rail- 
way, or  a  structure  used  in  operating  the  latter,  is  held  to  be  an  ad- 
ditional servitude,  injunction  at  the  suit  of  the  abutting  owner  in 
whom  was  the  fee  of  the  street  or  highway  was  held  to  be  a  proper 
remedy:  See  Canastota  Knife  Co.  v.  Newington  Tramway  Co.,  69  Conn. 
146,  36  Atl.  1107,  able  concurring  opinion  of  Hamersley,  J.;  Snvder 
V.  Fort  Madison  St.  Ey.  Co.,  105  Iowa,  284,  75  N.  W.  179,  41  L.  E.  A. 
345  (injunction  against  unnecessary  electric  railway  pole  placed  in 
front   of  plaintiff's   residence  to   annoy);    Craig  v.   Rochester  etc.   E. 


fi  468  EQUITABLE    REMEDIES.  772 

In  most  of  the  cases  no  distinction  appears  to  be  made 
between  the  owner's  remedial  right  to  an  injunction 
against  a  taking  without  compensation,  when  his  land 
is  thus  affected  with  a  public  easement,  and  when  he 
has  the  full  beneficial  use  of  the  land.  In  others,  the 
question  of  injunction  is  treated  as  one  addressed  to 
the  discretion  of  the  court,  which  should  balance  the 
relative  inconvenience  and  injury  to  the  parties  and 
the  iJublic  likely  to  result  from  granting  or  withhold- 
ing the  writ.^^     In  a  few  jurisdictions  the  courts  refuse 

E.  Co.,  39  N.  Y.  404;  Spofford  v.  E.  E.  Co.,  15  Daly,  162,  4  N.  Y. 
bupp.  388j  Peck  v.  Scheuectady  E.  Co.,  170  N.  Y.  298,  63  N.  E.  357 
(subject  re-examined  in  light  of  all  the  authorities,  and  the  Craig  case 
followed,  with  much  reluctance,  by  a  divided  court) ;  Dempster  v. 
United  Traction  Co.,  205  Pa.  St.  70,  54  Atl.  501;  Lange  v.  La 
Crosse  &  E.  E.  Co.,  118  Wis.  558,  95  N.  W.  952. 

It  has  been  held  that  an  abutting  owner  who  owns  the  fee  to  the 
center  of  the  street  cannot  enjoin  the  construction  of  a  railroad  on 
the  oi>posite  side  of  the  street,  because  none  of  his  property  is  taken: 
North  Pennsylvania  E.  Co.  v.  Inland  Traction  Co.,  205  Pa.  St.  379, 
55  Atl.  774. 

Where  telephone  and  telegraph  poles  are  held  to  impose  an  addi- 
tional servitude,  an  abutting  owner  who  owns  the  fee  in  the  street 
may  enjoin  their  erection  until  compensation  is  made:  Donovan  v. 
Allert,  11  N.  D.  289,  95  Am.  St.  Eep.  720,  91  N.  W.  441,  58  L.  E.  A. 
775. 

12  In  an  instructive  series  of  cases  in  Alabama,  all  the  more  note- 
worthy for  the  stringency  of  the  general  rule  as  to  injunctions  in  emi- 
nent domain  cases  in  that  state  (see  atite,  §  465).  In  Columbus  &  W. 
Ey.  Co.  V.  Witherow,  82  Ala.  190,  3  South.  23,  an  injunction  granted 
restraining  the  defendant  from  the  further  construction,  without 
compensation  to  complainant,  of  its  embankment  in  a  street  the  fee 
of  which  was  owned  by  complainant,  was  dissolved  upon  the  defend- 
ant's furnishing  security  deemed  adequate  for  the  damage  it  might 
do  in  the  erection  of  the  embankment.  The  court  said:  "The  pro- 
ceeding is  one  in  restraint  of  a  public  work  of  great  utility — the 
construction  of  a  railroad — thus  presenting  a  case  in  which  injunc- 
tions are  granted  with  great  caution.  Delay  in  the  construction  of 
the  work  may  operate  very  oppressively  against  the  defendant,  as 
well  as  result  in  great  injury  to  the  public.  Courts  very  often,  in 
such  cases,  balance  the  question  of  damages  to  the  one  part^j',  and 
that  of  benefit  to  the  other,  resulting  from  the  maintenance  of  the  in. 


773  INJUNCTION;    EMINENT   DOMAIN.  §  468 

to  recognize  any  distinction  as  to  the  abutting  owner's 
rights  based  on  his  ownership  of  the  fee  in  the  street, 
holding  that  there  is  no  taking  of  his  property,  but  only 
of  the  public  easement  in  the  street;  and  the  same 
courts  refuse  to  enforce  by  injunction  the  constitu- 
tional provision  against  "damaging"  property  without 
just  compensation,  unless  the  damaging  amounts  to  a 
virtual  destruction.^^ 

junction,  on  the  one  hand,  and  its  dissolution  on  the  other,  and  refuse 
to  take  any  action  which  will  cause  great  injury  to  one  party,  and 
probably  be  of  serious  detriment  at  the  same  time  to  the  public,  with- 
out corresponding  advantage  to  the  other  party."  In  Western  Rail- 
way of  Alabama  v.  Alabama  G.  T.  R.  Co.,  96  Ala.  272,  11  South.  483, 
17  L.  R.  A.  474,  a  temporary  injunction  was  dissolved,  it  appearing 
that  the  construction  of  defendant 's  railway  would  not  interfere  with 
the  tracks  of  complainant,  nor  with  any  track  it  had  the  right  to  con- 
struct; that  the  damage  to  complainant  would  be  nominal;  that  the 
defendant  was  not  shown  to  be  insolvent,  and  that  to  stop  the  work 
under  the  circumstances  would  probably  result  in  grievous  disaster 
to  its  enterprise,  which  was  of  a  public  nature,  without  any  advan- 
tages to  accrue  to  the  complainant.  See,  also,  Mobile  &  M.  Ry.  Co. 
V.  Alabama  M.  Ry.  Co.,  116  Ala.  51,  23  South,  57,  reviewing  prior 
cases;  Hinnershitz  v.  United  Traction  Co.,  199  Pa.  St.  3,  48  Atl. 
874. 

13  Spencer  v.  Point  Pleasant  &  O.  R.  R.  Co.,  23  W.  Va.  406, 
420  flf,  reviewing  the  then  existing  cases  at  great  length,  and  hold- 
ing that  there  was  no  "taking"  of  the  abutting  owner's  fee,  but 
only  of  the  public  easement  in  the  street,  and  criticising  with  great 
force  any  distinction  based  on  ownership  of  the  fee  in  the  street,  and 
holding  that  "damaging  of  property  for  public  use  without  just  com- 
pensation" gave  no  right  to  an  injunction,  but  only  to  recover  dam- 
ages in  an  action  at  law;  unless  under  peculiar  circumstances,  as 
where  the  property  is  entirely  destroyed  in  value  as  effectively  as  if 
it  had  actually  been  taken  by  the  railroad  company  in  constructing 
its  road.  All  damages  of  a  permanent  character  may  be  recovered 
in  a  single  suit  at  law,  and  an  injunction  is  therefore  not  necessary 
to  avoid  repeated  suits  at  law:  Smith  v.  Point  Pleasant  &  O.  R.  R. 
Co.,  23  W.  Va.  451.  The  Spencer  ease  was  followed  in  Arbenz  v. 
Wheeling  &  H.  R.  Co.,  33  W.  Va.  1,  10  S.  E.  14,  5  L.  R.  A.  371;  Wat- 
son V.  Fairmount  &  S.  Ry.  Co.,  49  W.  Va.  528,  39  S.  E.  193.  See,  also, 
Planet  Property  etc.  Co.  v.  St.  Louis  etc.  Ry.  Co.,  115  Mo.  613,  22  S. 
W.  616;  Rische  v.  Texas  Transportation  Co.,  27  Tex.  Civ.  App.  33,  66 
S.  W.  324. 


S  469  EQUITABLE    REMEDIES.  774 

§  469.  Same;  Fee  of  Street  in  the  Municipality. — Where 
the  abutting  owner  has  not  retained  the  fee  in  the 
street,  but  that  is  vested  in  the  municipality  in  trust 
for  the  public,  it  is  probably  the  rule  still  generally 
•  held  that  the  injury  to  his  easements  of  light,  air,  and 
access  caused  by  the  authorized  construction  or  opera- 
tion of  a  railroad  in  the  street  constitutes  no  "taking" 
of  "property"  within  the  meaning  of  the  constitutional 
inhibition,  and  therefore  no  ground  for  an  injunction.^* 
To  remedy  the  gross  injustice  and  hardship  of  this  rule, 
nearly  all  recent  state  constitutions  have  prohibited 
the  "damaging"  or  "injuring"  of  property  for  public 
use  without  just  compensation.  This  constitutional 
provision,  however,  has  not,  like  the  former,  generally 
been  construed  by  the  courts  as  requiring  the  aid  of 
an  injunction  for  its  enforcement.^^     A  reason  for  mak- 

14  O'Brien  v,  Baltimore  Belt  R.  R.  Co.,  74  Md.  369,  22  Atl.  141,  13 
L.  R.  A.  126  (statute  authorizes  recovery  of  damages  for  all  injury) ; 
Garrett  v.  Lake  Roland  El.  Ry.  Co.,  79  Md.  28U,  29  Atl.  830,  24  L.  R. 
A.  396,  and  many  cases  cited.     See,  also,  cases  in  following  notes. 

15  Illinois.— Doane  v.  Lake  St.  El.  R.  Co.,  165  111.  510,  56  Am.  St.  Rep. 
265,  46  N.  E.  520,  36.  L.  R.  A.  97,  and  cases  cited;  Stetson  v.  Chicagj 
&  E.  R,  Co.,  75  111.  74;  Peoria  &  R.  I.  R.  Co.  v.  Schertz,  84  111.  135; 
Truesdale  v.  Peoria  Grape  Sugar  Co.,  101  111.  561;  Corcoran  v.  Chicago, 
M.  &  N.  R.  Co.,  149  111.  291,  37  N.  E.  68;  Stewart  v.  Chicago  General 
St.  Ry.  Co.,  166  111.  61,  46  N.  E.  765;  General  Elec.  Ry.  Co.  v.  Chi- 
cago &  W.  I.  R.  Co.,  184  111.  588,  56  N.  E.  963;  Blodgett  v.  Northwest- 
ern El.  R.  Co.,  80  Fed.  601,  26  C.  C.  A.  21;  Coffeen  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  84  Fed.  46,  28  C.  C.  A.  274;  but  see  Beeson  v.  City 
of  Chicago,  To  Fed.  880. 

Missouri. — Clemens  v.  Connecticut  Mut.  Life  Ins.  Co.  (Mo.),  82  S. 
W.  L 

Colorado.— Denver  &  S.  F.  R.  Co.  v.  Domke,  11  Colo.  247,  17  Pac. 
777;  Denver,  U.  &  P.  Ry.  Co.  v.  Barsaloux,  15  Colo.  290,  25  Pac.  165, 
10  L.  B.  A.  89;  Haskell  v.  Denver  Tramway  Co.,  23  Colo.  60,  46  Pac. 
121. 

Georgia. — See  Brown  v.  Atlanta  R.  &  P.  Co.,  113  Ga.  462,  39  S.  E, 
71. 

Nebraska. — Bronson  v.  Albion  Tel.  Co.  (Neb.),  93  N.  W.  201. 


775  INJUNCTION;    EMINENT   DOMAIN.  §  469 

inj:j  this  distinction  is  found  in  the  difficulty  of  ascer- 
taining, before  the  railroad  is  actually  in  operation, 
the  amount  of  damage  that  will  be  caused  to  abutting 
premises;  also  in  the  fact,  sometimes  referred  to,  that 
legislatures  have  not  seen  fit  to  provide  a  procedure  for 
condemning  the  easements  of  abutting  owners  or  ap- 
praising the  damage  to  their  property.  They  are  there- 
fore left  to  pursue  their  remedies  at  law  for  the  recov- 
ery of  such  damage  as  they  may  suffer;  unless,  indeed, 
some  incident  such  as  the  insolvency  of  the  railroad 
company  renders  the  collection  of  the  damages  recov- 
ered impossible,  and  the  intervention  of  a  court  of 
equity  essential.^® 

In  a  number  of  states,  while  the  abutting  owner  is 
usually  left  to  his  legal  remedy,  if  the  operation  of  the 
railroad  amounts  to  a  total  obstruction  of  the  street 
or  of  plaintiff's  access  to  his  premises,^ ^  or  causes  a 

16  Dictum  in  Peoria  &  E.  I.  E.  Co.  v.  Scliertz,  84  lU.  135. 

17  Missouri.— Lockwood  v.  Wabash  E.  E.  Co.,  122  Mo.  86,  43  Am.  St. 
Eep.  547,  26  S.  W.  •GQS  (street  so  narrow  that  use  by  railroad  neces- 
sarily destroys  it  as  a  public  thoroughfare,  and  deprives  abutting 
owners  of  access  t©  their  property);  Knapp,  Stout  &  Co.  v.  St. 
Louis  Transfer  Ey.  Co.,  126  Mo.  26,  28  S.  W.  627  (track  so  close  to 
plaintiff's  building  as  to  practically  obstruct  access);  Schulenberg 
&  Borckeler  Lumber  Co.  v.  St.  Louis,  K.  &  N.  W.  Ey.  Co.,  129  Mo. 
455,  31  S.  W.  796;  Sherlock  v.  Kansas  City  Belt  Ey.  Co.,  142  Mo. 
172,  €4  Am.  St.  Eep,  551,  43  S.  W.  629  (railroad  in  alley;  injunction 
before  running  of  cars  has  begun).  In  D.  M.  Osborne  &  Co.  v.  Mis- 
souri P.  E.  Co.,  147  U.  S.  248,  13  Sup.  Ct.  299,  37  L.  ed.  155,  Fuller, 
C.  J.,  after  reviewing  the  Missouri  decisions  and  stating  the  general 
principle  as  to  equitable  relief  against  the  exercise  of  the  eminent 
domain  power,  makes  the  following  general  statement,  which  has  been 
often  quoted:  "But  where  there  is  no  direct  taking  of  the  estate 
itself,  in  whole  or  in  part,  and  the  injury  complained  of  is  the  inflic- 
tion of  damages  in  respect  to  the  complete  enjoyment  thereof,  a  court 
of  equity  must  be  satisfied  that  the  threatened  damage  is  substan- 
tial, and  the  remedy  at  law  in  fact  inadequate,  before  restraint  will 
be  laid  upon  the  progress  of  a  public  work;  and  if  the  case  made  dis- 
closes only  a  legal  right  to  recover  damages  rather  than  to  demand 
compensation,  the  court  will  decline  to  interfere." 


I  470  EQUITABLE    REMEDIES.  776 

destruction  of  liis  property  for  the  purposes  for  which  it 
was  used,  equivalent  in  effect  to  a  physical  appropria- 
tion of  the  land,  he  may  resort  to  equity  for  an  in- 
junction.^® 

§  470.  Same;  New  York  Rule;  Elevated  Railroad  Cases. — 
The  New  York  doctrine  as  laid  down  in  the  "Elevated 
Railroad  cases"  appears  to  have,  as  yet,  but  a  slight 
following  in  other  states ;  but  these  cases  are  so  notable 
from  their  vast  number,  the  eminence  of  the  counsel 
engaged  in  many  of  them,  and  the  thoroughness  with 
which  the  fundamental  principles  are  discussed  and 
subsidiary  rules  worked  out,  that  a  somewhat  full  state- 
ment of  the  chief  conclusions  arrived  at  seems  called 
for  even  in  a  work  of  an  elementary  character.  It  is 
important  to  notice,  however,  that  these  conclusions 
are  held  not  to  apply  to  a  steam  railroad  on  the  surface 
of  the  street,  operated  in  such  a  manner  as  not  to  ob- 
struct public  traflflc. 

The  doctrine  was  thus  summed  up  in  one  of  the  lead- 
ing cases  of  the  series:  "The  decisions  of  this  court  have 
settled  the  rights  of  abutting  property  owners  to  an 
easement  in  the  street  occupied  by  the  defendants' 
structure,  for  free  egress  and  ingress,  and  for  the  free 
admission  of  light  and  circulation  of  air.  That  ease- 
ment is  property,  and  constitutes  an  interest  in  real 
estate ;  and  because  the  defendants'  railroad  was  a  use  of 
the  street  not  originally  designed,  and  was  an  appropri- 
ation to  themselves  of  property  rights,  it  cannot  be  main- 
tained without  compensation  being  made  to  the  abut- 
ting owners  for  the  injury  inflicted  upon  their  property 
and  rights;  and,  for  the  annoyance  caused  through  the 
operation  of  the  road  to  the  abutting  owners,  in  their 
enjoyment  of  the  use  of  their  property,  they  are  en- 

is  See  cases  cited  ante,  last  section,  note  13. 


777  INJUNCTION;    EMINENT   DOMAIN.  S  479 

titled  to  recover  such  damages  as  may  be  shown  to  be 
the  result  of  the  defendants'  acts:  Story  v.  New  York 
etc.  R.  R.  Co.,  90  N.  Y.  122,  43  Am.  Rep.  146 ;  Lahr  v. 
New  York  etc.  Railroad  Co.,  104  N.  Y.  2G8,  10  N.  E. 
528.  Although  property  owners  have  a  remedy  at  law 
for  the  intrusion  upon  their  rights,  yet,  as  the  trespass 
is  continuous  in  its  nature,  they  can  invoke  the  re- 
straining power  of  a  court  of  equity  in  their  behalf,  in 
order  to  prevent  a  multiplicity  of  suits,  and  they  can 
recover  the  damages  they  have  sustained,  as  incidental 
to  the  granting  of  the  equitable  relief :  Williams  v.  New 
York  Cent.  R.  R.  Co.,  16  N.  Y.  97,  69  Am.  Dec.  651; 
Henderson  v.  New  York  Central  R.  R.  Co.,  78  N.  Y. 
423.  The  violation  of  the  property  rights  of  abutting 
owners  being  adjudged  in  such  an  action,  the  awarding 
of  damages  sustained  in  the  past  from  the  defendants 
follows;  they  being,  on  equitable  principles,  deemed 
incidental  to  the  main  relief  sought."^ ^ 

19  Shepard  v.  Manhattan  Ey.  Co.,  117  N.  Y.  442,  23  N.  E.  30,  per 
Gray,  J.  The  decisions  in  the  Story  case  and  other  elevated  railroad 
cases  are  based  upon  the  character  of  the  structure  and  do  not  ap- 
ply to  a  steam  surface  railroad  operated  in  a  reasonable  way:  Forbes 
V.  Eome,  W.  &  O.  E.  Co.,  121  N.  Y.  505,  24  N.  E.  921,  8  L.  E.  A.  453  j 
Drake  v.  Hudson  E.  E.  Co.,  7  Barb.  508.  The  principles  of  the  Story 
and  Lahr  cases  were  again  announced  and  explained  in  Abendroth 
V.  New  York  El.  E,  Co.,  122  N.  Y.  1,  25  N.  E.  496,  19  Am.  St.  Eep. 
4(51,  11  L.  E.  A.  634;  Kane  v.  Metropolitan  El.  E.  Co.,  125  N.  Y.  164, 
26  N.  E.  278,  11  L.  E.  A.  640,  explaining  the  legal  basis  for  the  doc- 
trine of  the  abutter's  easements  in  the  street;  Kernochan  v.  New 
York  El.  E.  Co.,  128  N,  Y.  568,  29  N.  E.  65;  Hughes  v.  New  York  El. 
K.  Co.,  130  N.  Y.  14,  28  N.  E.  765;  O 'Eeilly  v.  New  York  El.  E.  Co., 
148  N.  Y.  347,  42  N.  E.  1063,  31  L.  E.  A.  407.  See,  also,  Knox  v.  Met- 
ropolitan El.  E.  Co.,  36  N.  Y.  St.  Eep.  2,  12  N.Y.  Supp.  848.  The  doctnuo 
of  the  elevated  railroad  cases  was  followed  in  Willamette  Iron  Works 
V.  Oregon  E.  &  N.  Co.,  26  Or.  224,  46  Am.  St.  Eep.  620,  37  Pac.  1016,  29 
L.  E.  A.  88;  and  appears  to  have  been  anticipated,  in  substance,  in 
Scioto  Val.  E.  Co.  v.  Lawrence,  38  Ohio  St.  41,  43  Am.  Eep.  419.  Tri 
Iowa  a  statute  provides  that  railroad  tracks  shall  not  be  construct o<] 
in  streets,  etc.,  until   damages  to  abutters  are   ascertained   and   com- 


§  470  EQUITABLE   EEMEDIES.  778 

In  a  common -law,  as  distinguished  from  an  equitable, 
action,  the  abutter  can  only  recover  such  temporary 
damages  as  have  been  sustained  up  to  the  time  of  the 
commencement  of  the  action,  and  is  not  entitled  to 
damages  measured  by  the  permanent  diminution  in  the 
value  of  his  property.^®  "But  the  owner  may  resort 
to  equity  for  the  purpose  of  enjoining  the  continuance 
of  the  trespass,  and  to  thus  prevent  a  multiplicity  of 
actions  at  law  to  recover  damages;  and  in  such  an  ac- 
tion the  court  may  determine  the  amount  of  damage 
which  the  owner  would  sustain  if  the  trespass  were 
permanently  continued,  and  it  may  provide  that  upon 
pa^^ment  of  that  sum,  the  plaintiff  shall  give  a  deed 
or  convey  the  right  to  the  defendant,  and  it  will  refuse 
an  injunction  when  the  defendant  is  willing  to  pay 
upon  the  receipt  of  a  conveyance.  The  court  does  not 
adjudge  that  the  defendant  shall  pay  such  sum  and  that 
the  plaintiff  shall  so  convey.  It  provides  that  if  the 
conveyance  is  made  and  the  money  paid,  no  injunction 
shall  issue.  If  defendant  refuses  to  pay,  the  injunc- 
tion issues. "^^     The  award  of  damages  for  past  injuries 

pensated.  The  abutter  may  have  an  injunction  under  this  statute  to 
prevent  its  violation:  See  Harbach  v.  Des  Moines  &  K.  C.  E.  Co.,  SO 
Iowa,  593,  44  N.  W.  348,  11  L.  R.  A.  113. 

20  Pond  V.  Metropolitan  El.  R.  Co.,  112  N.  Y.  186,  8  Am.  St.  Rep. 
734,  19  N.  E.  487;  Uline  v.  New  York  etc.  R.  R.  Co.,  101  N.  Y.  98,  54 
Am.  Rep.  661,  4  N.  E.  536. 

21  Pappenheim  v.  Metropolitan  El.  R.  Co.,  128  N.  Y.  436,  26  Am. 
St.  Rep.  486,  28  N.  E.  518,  13  L.  R.  A.  401.  See,  also,  McGean  v. 
Metropolitan  El.  R,  Co.,  133  N.  Y.  9,  30  N.  E.  647;  Van  Allen  v.  New 
York  El.  R.  Co.,  144  N.  Y.  174,  38  N.  E.  997;  Pegram  v.  New  York 
El.  R.  Co.,  147  N.  Y.  135,  41  N.  E.  424.  See,  also,  Woodworth  v.  Brook- 
l>Ti  El.  R.  Co.,  29  App.  Div.  1,  51  N.  Y.  Supp.  323  (when  railroad  in 
hands  of  receiver);  Siegel  v.  New  York  &  H.  R.  Co.,  62  App.  Div. 
290,  70  N.  Y.  Supp.  1088;  Larney  v.  New  York  &  H.  R.  Co.,  62  App. 
Div.  311,  71  N.  Y.  Supp,  27;  Auchincloss  v.  Metropolitan  El.  R.  Co.. 
69  App.  Div.  63,  74  N.  Y.  Supp.  534,  reversing  60  N,  Y.  Supp.  792; 
Lane  v.  Metropolitan  El.  R,  Co.,  69  App.  Div.  231,  74  N.  Y,  Supp. 


779  INJUNCTION;    EMINENT   DOMAIN.  §  470 

sustained  being  incidental  to  the  equitable  relief,  tlie 
defendant  is  not  entitled  to  a  jury  trial  of  such  claim 
for  damages.22 

Actual  damage  suffered  by  the  abutting  property  is 
of  the  gist  of  the  equitable  action.  A  court  of  equity 
is  at  liberty  to  disregard  the  mere  technical  trespass 
upon  the  abutter's  rights,  and  to  refuse  an  injunction, 
"in  a  case  where  the  plaintiffs  are  unable  to  show  any 
actual  damage  to  their  property,  or  loss  suffered,  by 
reason  of  the  defendants'  acts,  and  in  the  face  of  the 
fact  that,  by  reason  of  the  presence  and  operation  of 
the  elevated  railroad  in  the  street,  the  value  of  their 
property  has  greatly  increased,  and  that  it  has  shared 
equally  with  all  the  property  in  the  vicinity  in  the 
general  increase  of  values  which  has  taken  place."^^ 

595.  See,  also,  Muhlker  v.  New  York  &  H.  E.  Co.,  197  U.  S.  455,  25 
Sup.  Ct.  522. 

22  Lynch  v.  Metropolitan  El.  K.  Co.,  129  N.  Y.  274,  26  Am.  St.  Eep. 
523,  29  N.  E.  315,  15  L,  K.  A.  287,  ably  discussing  the  general  sub- 
ject of  damages  as  incidental  to  relief  in  equity;  Shepard  v.  Man- 
hattan Ey.  Co.,  131  N.  Y.  215,  30  N.  E.  187;  Hunter  v.  Manhattan 
E.  Co.,  141  N.  Y.  281,  36  N.  E.  400. 

23  O'Eeilly  v.  New  York  El.  E.  Co.,  148  N.  Y,  347,  42  N.  E.  1063, 
31  L.  E.  A.  407,  citing  Jerome  v.  Ross,  7  Johns.  Ch.  315,  11  Am.  Dec. 
484;  Kerlin  v.  West,  4  N.  J.  Eq.  449;  Troy  &  B.  E.  Co.  v.  Boston,  H. 
T.  &  W.  E.  Co.,  86  N.  Y.  123;  Gray  v.  Eailway  Co.,  128  N.  Y.  499,  28 
N.  E.  498;  Shepard  v.  Eailway  Co.,  131  N.  Y.  215,  30  N.  E.  187; 
Hunter  v.  Eailway  Co.,  141  N.  Y.  281,  36  N.  E.  400;  Doyle  v.  Eailway 
Co.,  136  N.  Y.  505,  32  N.  E.  1008;  Bookman  v.  Eailroad  Co.,  147  N. 
Y.  298,  49  Am.  St.  Eep.  €64,  41  N.  E.  705.  See,  also,  Purdy  v.  Man- 
hattan El.  E.  Co.,  36  N.  Y.  St.  Eep.  43,  13  N.  Y.  Supp.  295;  Brush  t. 
Manhattan  El.  E.  Co.  (Com.  P.),  17  N.  Y.  Supp.  540;  Steinmetz  v. 
Metropolitan  El.  E.  Co.  (Sup.  Ct.),  18  N.  Y.  Supp.  209;  Pratt  t. 
New  York  C.  &  H.  E.  E.  Co.,  90  Hun,  83,  35  N.  Y.  Supp.  557;  Eorke 
V.  Kings  Co.  El.  E.  Co.,  22  App.  Div.  511,  48  N.  Y.  Supp.  42;  Tillson 
V.  Manhattan  E.  Co.,  24  App.  Div.  623,  48  N.  Y.  Supp.  224;  Marsh  v. 
Kings  Co.  El.  E.  Co.,  86  Fed.  189,  29  C.  C.  A.  655.  Compare  Mait- 
land  V.  Manhattan  E.  Co.,  9  Misc.  Eep.  616,  30  N.  Y.  Supp.  428.  The 
opinion  of  Gray,  J.,  in  the  O'Eeilly  case,  is  one  of  the  most  instruc- 
tive in  the  whole  course  of  the  elevated  railroad  litigation.     He  says, 


§  470  EQUITABLE    REMEDIES.  780 

in  part:  "Therefore,  the  only  ground  for  the  claim  of  the  plaintiffa, 
that  they  are  entitled  to  equitable  relief,  is  in  the  mere  fact  that 
the  defendants  have  invaded  their  rights  in  the  public  street,  with- 
out their  consent,  and  without  having  first  condemned  the  same  by  an 

exercise  of  the  right  of  eminent  domain But  it  seems  to  me  to 

be  perfectly  clear  that  the  court,  when  appealed  to  by  the  property 
owners  to  enjoin  the  operation  by  the  corporation  of  its  franchises, 
upon  the  ground  that  certain  easements  have  been  invaded,  will  con- 
sider the  fact  that  the  corporation  is  there  for  the  public  convenience, 
and  is  executing  a  quasi  public  work;  and,  if  it  finds  that  no  injury 
is  in  truth  inflicted,  and  that  the  property  owner  has  suffered  no 
actual  damage,  it  may  and  should  refuse  to  grant  the  relief  prayed 

for The  court  recognizes  the  fact  that  the  defendants  had  the 

right  to  appropriate  the  street  easements  by  condemnation  proceed- 
ings, and  hence,  when  appealed  to  to  enjoin  them  from  operating 
their  franchises,  it  looks  into  the  question  of  the  substantial  nature 
of  the  damage  alleged  to  have  been  done  to  the  property,  or  of  the 
loss  suffered  by  the  owner.  If  it  is  found  to  be  such,  then  the  court 
proceeds  in  the  matter  as  though  the  proceeding  was  one  to  condemn 
to  the  defendants'  uses  the  property  appropriated,  and,  having  ascer- 
tained the  value  of  the  property,  it  suspends  the  decree,  which  it 
finds  the  plaintiffs  are  entitled  to  to  restrain  the  continuance  of  the 
defendants'  acts,  for  a  sufficient  period  within  which  to  permit  the 
defendants  to  acquire  the  right  to  appropriate  the  easements  through 
a  conveyance,  as  a  condition  of  avoiding  the  enforcement  of  the  de- 
cree. The  proceedings  by  which  the  court  ascertains  and  fixes  the 
damages  done  to  the  abutting  property  in  the  deprivation  of  ease- 
ments are,  in  fact,  but  a  substitute  for  condemnation  proceedings," 
etc. 

Parties  Plaintiff;  Title,  etc.:  See  Shepard  v.  Manhattan  E.  Co., 
117  N.  Y.  442,  23  N.  E.  30  (joinder);  Kernochan  v.  New  York  El.  R. 
Co.,  128  N.  Y.  568,  29  N.  E.  65  (lessor  a  proper  plaintiff;  right  of 
action  accruing  after  death  vests  in  heirs,  not  in  administrator) ; 
Hughes  V.  New  York  El.  R.  Co.,  130  N.  Y.  14,  28  N.  E.  765  (evidence 
of  plaintiff's  title);  McGean  v.  Metropolitan  El.  Ey.  Co.,  133  N.  Y. 
9,  30  N.  E.  647  (effect  of  transfer  of  plaintiff's  title  pendente  lite); 
Mitchell  V.  Metropolitan  El.  R.  Co.,  56  Hun,  543,  9  N.  Y.  Supp.  829, 
134  N.  Y.  11,  31  N.  E.  260  (permanent  damages  should  be  paid  to 
heirs,  not  to  executors,  of  deceased  owner) ;  Hunter  v.  Manhattan 
R.  Co.,  141  N.  Y.  281,  3G  N.  E.  400  (a  part  of  the  claim  for  damages 
rests  on  assignment);  Van  Allen  v.  New  York  El.  Ry,  Co.,  144  N.  Y. 
174,  38  N.  E.  997  (effect  of  conveyance  pendente  lite  on  jurisdiction 
of  the  court  of  equity  to  award  damages);  Pegram  v.  New  York  El. 
R.  Co.,  147  N.  Y.  135,  41  N.  E.  424  (same  question);  Doraschke  v. 
Metropolitan   El.   R.   Co.,   148   N.   Y.   343,   42   N.   E.   804   (conveyance 


781  INJUNCTION;    EMINENT    DOMAIN.  §  470 

pendente  lite);  Koeler  v.  New  York  El.  K.  Co.,  159  N.  T.  218,  53  N. 
E.  1114  {pendente  lite  grantee  may  be  joined  as  plaintiff  or  defend- 
ant); Mooney  v.  New  York  El,  R.  Co.,  163  N.  Y.  242,  57  N.  E.  496. 
See,  also,  Welsh  v.  New  York  El.  R.  Co.  (Com.  PI.),  12  N.  Y.  Supp. 
545  (where  plaintiff  has  leasehold  interest,  injunction  only  during 
continuance  of  his  interest) ;  Odell  v.  Metropolitan  El.  R.  Co.,  3 
Misc.  Rep.  335,  22  N.  Y.  Supp.  737;  Wright  v.  New  York  El.  R.  Co., 
78  Hun,  450,  29  N.  Y.  Supp.  223  (where  conveyance  from  plaintiffs 
is  impossible,  decree  should  be  for  injunction  unless  defendant  pay 
a  certain  sum  upon  conveyance,  and  if  that  could  not  be  made,  unless 
defendant  condemn  the  easements) :  McKee  v.  New  York  El.  R.  Co.,  79 
Hun,  366,  29  N.  Y.  Supp.  457  (same  question);  Skelly  v.  Metropolitan 
El.  R.  Co.,  1  App.  Div.  31,  37  N.  Y.  Supp.  7,  affirmed  without  opinion, 
158  N.  Y.  677,  52  N.  E.  1126.  (same  question);  Jacobson  v.  Brooklyn 
El.  R.  Co.,  22  Misc.  Rep.  281,  48  N.  Y.  Supp.  1072  (such  claim  for 
damages  as  passes  to  executors  of  owner  is  u.erely  basis  for  common- 
law  action). 

Measure  of  Damages  in  Eauity:  See  Drucker  v.  Manhattan  R.  Co., 
106  N.  Y.  157,  60  Am.  Rep,  437,  12  N.  E.  568;  Newman  v.  Metropoli- 
tan El.  R.  Co.,  118  N.  Y.  618,  23  N.  E.  901,  7  L.  R.  A.  289;  Kane  v. 
Metropolitan  El.  R.  Co.,  125  N  Y.  164,  26  N.  E,  278,  11  L.  R.  A.  640; 
Pappenheim  v.  Metropolitan  El.  R.  Co.,  128  N.  Y.  436,  26  Am.  St. 
Rep.  486,  28  N.  E.  518,  13  L.  R,  A,  401;  Roberts  v.  New  York  El. 
R.  Co.,  128  N,  Y,  455,  28  N.  E.  486,  13  L.  R.  A.  499  (as  to  opinion  evi- 
dence and  testimony  of  experts) ;  Gray  v.  Manhattan  R.  Co.,  128  N. 
Y.  499,  28  N.  E.  498  (same);  Bohm  v.  Metropolitan  El.  R.  Co.,  129 
N.  Y.  576,  29  N.  E.  802,  14  L,  R.  A.  344;  Hughes  v.  New  York  El. 
R.  Co.,  130  N.  Y.  14,  28  N.  E.  765;  Storck  v.  Metropolitan  El.  R.  Co., 
131  N.  Y.  514,  30  N.  E.  497;  Becker  v.  Metropolitan  El.  R.  Co.,  131 
N.  Y.  509,  30  N.  E.  499;  Woolsey  v.  New  Y^ork  El.  R.  Co.,  134  N.  Y. 
323,  30  N,  E.  387;  affirmed  on  rehearing,  31  N.  E.  891;  Sperb  v.  Metro- 
politan El.  R.  Co.,  137  N.  Y.  155,  32  N.  E.  1050,  20  L.  R.  A.  752, 
reviewing  prior  cases  ("the  principle  which  should  guide  an  award 
of  damages  to  be  paid  by  the  railroad  company  in  order  to  obviate 
the  injunction  is  the  same  as  in  proceedings  under  the  statute  to 
condemn  property  for  the  railroad  use");  Hunter  v.  Manhattan  R. 
Co.,  141  N.  Y.  281,  36  N.  E.  400  (what  expert  testimony  is  admissi- 
ble); Bookman  v.  New  York  El.  R.  Co.,  147  N.  Y,  298,  49  Am.  St. 
Rep.  664,  41  N.  E.  705;  Jamieson  v.  Kings  Co.  El.  R.  Co.,  147  N.  Y. 
322,  41  N.  E,  693;  Roberta  v.  New  York  El.  R.  Co.,  loS  N.  Y.  31,  49 
N.  E.  262.  See,  also.  Emigrant  Mission  Com.  v.  Brooklyn  El.  R.  Co.,  20 
App.  Div.  596,  47  N.  Y.  Supp.  344. 

Statute  of  Limitations.— Since  the  trespass  is  a  continuing  one.  the 
action  for  injunction  may  be  maintained  so  long  as  a  legal  claim  for 
the  trespass  exists;   and  no  lapse  of  time  or  inaction  merely  on  tht^ 


5  4  71  EQUITABLE    REMEDIES.  782 

§  471.  Changing  Grade  of  Street;  Other  Uses  of  Streets; 
Vacating  Streets. — Here,  again,  it  is  necessary  to  segre- 
gate the  cases  which  hold  that  the  injury  caused  to  the 
abutting  owner  by  the  action  of  a  municipal  or  other 
authority,  acting  within  the  limits  of  its  power,  in 
raising  or  lowering  the  grade  of  a  street,  confers  no 
right  of  action  whatever  upon  the  abutter;'-^  and  cases 
holding  that  such  structures  as  electric  light  poles,^^ 
telegraph  or  telephone  poles,  and  the  like,  create  no 
"additional  servitude"  in  the  street.  If  the  abutter 
owns  the  fee  in  the  street,  and  such  structures  are  held 
to  create  an  additional  servitude,  and    are    shown    to 

part  of  the  plaintiff,  unless  it  has  continued  for  the  length  of  time 
necessary  to  effect  a  change  of  title  in  the  property  claimed  to  hava 
been  injured,  is  sufficient  to  defeat  the  right  of  the  owner  to  dam- 
ages, and,  consequently,  to  equitable  relief:  Galway  v.  Metropolitan 
Eiev.  R.  Co.,  128  N.  Y.  145,  28  N.  E.  479. 

Laches,  Acquiescence  and.  Estoppel. — Conduct  not  amounting  to: 
Galway  v.  Metropolitan  El.  E.  Co.,  128  N,  Y.  145,  28  N.  E,  479,  13 
L.  E,  A.  788;  Brush  v.  Manhattan  El.  E.  Co.,  26  Abb.  N.  C.  73,  13 
N.  Y.  Supp.  908. 

Abandonment  of  Easements,  evidenced  by  written  consent  to  the 
building  of  the  railroad:   "White  v.  Manhattan  E.  Co.,  139  N.  Y.  19, 

34  N.  E.  887;  Heimburg  v.  Manhattan  R.  Co.,  162  N.  Y.  352,  56  N. 
E.  899,  19  App.  Div.  179,  45  N.  Y.  Supp.  999;  see,  also,  Bellew  v.  iS'ew 
York,  W.  &  C.  Traction  Co.,  47  App.  Div.  447,  62  N.  Y.  Supp.  242; 
or  where  plaintiff  purchased  from  city,  which  had  given  consent: 
Herzog  v.  New  York  El.  E.  Co.,  76  Hun,  486,  27  N.  Y.  Supp.  1034, 
affirmed  without  opinion,  151  N.  Y.  665,  46  N.  E.  1148.  As  to  the 
effect  of  consent  conditional  on  compensation,  see  Kornder  v.  Kings 
Co.  El.  E.  Co.,  41  App.  Div.  357,  58  N.  Y.  Supp.  518. 

'2i  See,  for  example,  Fellowes  v.  City  of  New  Haven,  44  Conn.  240, 
26  Am.    Eep.    447;    Churchill  v.  Beethe,  48    Neb.    87,  66    N.    W.  992, 

35  L.  E.  A.  442  (change  of  grade  diverting  surface  water  on  to  plain- 
tiff's land);  Talbot  v.  New  York  &  H.  E.  Co.,  151  N.  Y.  155,  45  N.  E. 
382  (change  of  street  grade  in  constructing  bridge  over  railroad) ; 
and  see  Lewis,  Eminent  Domain,  §§  92-109.  For  further  cases  hold- 
ing, in  general,  that  the  exercise  of  discretionary  powers  by  munici- 
pal authorities  will  not  be  enjoined,  see  ante,  §  342. 

25  Loeber  v.  Butte  General  Elec.  Co.,  16  Mont.  1,  50  Am.  St. 
Eep.  468,  39  Pac.  912.     See  monographic  note,  28  Am.  St.  Eep.  229. 


783  INJUNCTION;   EMINENT   DOMAIN.  §  471 

abridge  the  right  of  the  abutter  to  the  use  of  the  street 
as  a  means  of  ingress  and  egress,  or  otherwise,  a  proper 
case  is  made  for  an  injunction  until  compensation  is 
made.2^ 

In  the  limited  class  of  cases  where  the  injury  caused 
by  a  change  of  grade  is. held  to  constitute  a  "taking" 
of  the  abutter's  property,  it  seems  that  an  injunction 
may  issue  in  accordance  with  the  general  principles 
governing  injunction  against  the  exercise  of  the  emi- 
nent domain  power.^' 

Where,  under  the  modern  constitutional  provision, 
"damaging"  property  for  public  use  without  compensa- 
tion is  prohibited,  and  paying  or  securing  the  compensa- 
tion is  treated  as  a  condition  precedent  to  doing  the 
work  which  causes  the  damage,  an  injunction  will  usu- 
ally be  granted  until  the  condition  is  complied  with. 
The  considerations  which  should  guide  the  court  in 
granting  or  refusing  the  injunction  at  the  suit  of  the 

26  Chesapeake  &  P.  Tel.  Co.  v.  Mackenzie,  74  Md.  36,  28  Am. 
St.  Eep.  219,  21  Atl.  690.  See,  also,  Donovan  v.  Allert,  11  N.  D. 
289,  95  Am.  St.  Eep.  720,  91  N.  W.  441,  58  L.  E.  A.  775.  Where 
the  abutter's  cause  of  action  is  dependent  upon  his  ownership  of 
the  fee  in  the  street,  a  bill  by  him  to  enjoin  a  telephone  company 
from  laying  conduits  under  the  sidewalk  is  demurrable,  when  it  does 
not  allege  that  the  plaintiff  owned  the  fee  in  the  walk  or  street, 
or  that  the  walk  or  street  was  dedicated  to  the  public  by  one  who 
at  the  time  owned  the  fee:  Erwin  v.  Central  Union  Tel.  Co.,  148 
Ind.  365,  46  N.  E.  6€r7,  47  N.  E.  663. 

27  See  Vanderlip  v.  City  of  Grand  Eapids,  73  Mich.  522,  16  Am. 
St.  Eep.  597,  41  N.  W.  677,  3  L.  E.  A.  247,  where  the  injury  was 
done  by  raising  the  grade,  thereby  burying  a  portion  of  the  dwell- 
ing-house and  barn  of  the  abutting  owner.  In  those  jurisdictions, 
like  New  York,  where  the  plaintiff's  right  of  action  with  reference 
to  an  additional  servitude  is  not  dependent  upon  his  ownership 
of  the  fee,  it  seems  that  he  cannot  enjoin  such  a  structure  as  a 
telephone  conduit,  authorized  to  be  laid  in  the  street,  in  the  absence 
of  a  showing  of  substantial  pecuniary  damage  to  his  property:  Castle 
V.  Bell  Tel.  Co.  of  Buffalo,  30  Misc.  Eep.  38,  61  N.  Y.  Supp.  743, 
following  the  principle  of  O'Eeilly  v.  Eailroad  Co.,  ante,  §  470,  at 
note  23. 


S  471  EQUITABLE    REMEDIES.  184 

abutting  owner  in  such  cases  are  thus  stated  in  a  most 
instructive  opinion  by  Judge  Brewer: 

"First.  A  chancellor,  in  determining  an  application 
for  an  injunction,  must  regard  not  only  the  rights  of 
the  complainant  which  are  sought  to  be  protected,  but 
the  injuries  which  may  result  to  the  defendant  or  to 
others  from  the  granting  of  the  injunction.  If  the  com- 
plainant's rights  are  of  a  trifling  character,  if  the  in- 
jury which  he  would  sustain  from  the  act  sought  to 
be  enjoined  can  be  fully  and  easily  compensated,  while, 
on  the  other  hand,  the  defendant  would  suffer  great 
damage,  and  especially  if  the  public  would  suffer  a 
large  inconvenience  if  the  contemplated  act  was  re- 
strained, the  lesser  right  must  yield  to  the  larger  ben- 
efit; the  injunction  should  be  refused,  and  the  com- 
plainant remitted  to  his  action  for  damages.  This  rule 
has  been  enforced  in  a  multitude  of  cases,  and  under 
a  variety  of  circumstances,  and  is  one  of  such  evident 
justice  as  needs  no  citation  of  authorities  for  its  sup- 
port. 

"Scco7id.  When  the  defendant  has  an  ultimate  right 
to  do  the  act  sought  to  be  restrained,  but  only  upon 
some  condition  precedent,  and  compliance  with  the  con- 
dition is  within  the  power  of  the  defendant,  injunction 
will  almost  universally  be  granted  until  the  condition 
is  complied  with.  This  principle  lies  at  the  foundation 
of  the  multitude  of  cases  which  have  restrained  the 
taking  of  property  until  after  the  payment  of  compensa- 
tion, for  in  all  those  cases  the  legislature  has  placed  at 
the  command  of  the  defendant  means  for  ascertaining 
the  value  of  the  property.  In  those  cases  the  courts 
have  seldom  stopped  to  inquire  whether  the  value  of 
the  property  sought  to  be  taken  was  little  or  great, 
whether  the  injury  to  the  complainant  was  large  or 
small,  but  have  contented  themselves  with  holding  that 


785  INJUNCTION;    EMINENT    DOMAIN.  §  471 

as  the  defendant  had  full  means  for  ascertaining  such 
compensation,  it  was  his  first  duty  to  use  such  means, 
determine  and  pay  the  compensation,  and  until  he  did 
so  the  taking  of  the  property  would  be  enjoined. 

"lliird.  Where  the  defendant  has  an  ultimate  right 
to  do  the  act  sought  to  be  enjoined  upon  certain  condi- 
tions, and  the  means  of  complying  with  such  conditions 
are  not  at  his  command,  the  courts  will  endeavor  to 
adjust  their  orders  so  on  the  one  hand  as  to  give  to  the 
complainant  the  substantial  benefit  of  such  conditions, 
while  not  restraining  the  defendant  from  the  exercise 
of  his  ultimate  rights.  Thus,  in  the  case  at  bar,  the  de- 
fendant has  of  course  the  ultimate  right  to  grade  this 
street.  As  a  condition  of  such  right  is  a  payment  of 
damages,  but  it  has  no  means  of  ascertaining  those 
damages;  no  tribunal  has  been  created,  no  provision 
of  law  made,  for  their  ascertainment.  Hence,  if  pos-' 
sible,  the  court  should  provide  for  securing  to  the  de- 
fendant this  ultimate  right,  and  at  the  same  time  give 
to  the  complainant  the  substantial  benefit  of  the  prior 
conditions."  It  was  further  held  that  in  applying  the 
rule  first  stated  to  a  case  like  the  one  at  bar,  the  court 
should  have  principal  regard  to  three  matters,  viz. : 
the  amount  of  injury  to  the  complainant,  the  solvency 
of  the  defendant,  and  the  importance  to  the  public  of 
the  proposed  improvement.^^ 

28  McElroy  v.  Kansas  City,  21  Fed.  257,  261,  et  seq.,  per  Brewer, 
Cir.  J.;  approved  in  D.  M.  Osborne  &  Co.  v.  Missouri  Pac.  E.  Co., 
147  U.  S.  248,  13  Sup.  Ct.  299,  37  L.  ed.  155.  It  was  found  that 
the  injury  to  the  complainant's  lot  would  be  serious;  that  the  de- 
fendant was  unquestionably  solvent;  and  that  the  improvement  was 
not  one  of  pressing  public  necessity.  A  restraining  order  was  is- 
sued, with  a  provision  for  the  appointment  of  commissioners  by  the 
court  to  ascertain  and  report  the  complainant's  damages,  end  for 
vacating  the  injunction  on  payment  of  such  damages.  See,  also,  in 
support  of  the  plaintiff's  right  to  an  injunction  under  the  "dam- 
aged" clause  of  the  constitution.  Brown  v.  City  of  Seattle,  5  Wash. 
Equitable  Remedies,  Vol.  1—50 


§  472  EQUITABLE    REMEDIES.  786 

The  courts  are  not  in  accord  on  the  question,  what 
right  to  compensation,  if  any,  is  given  to  owners  of  prop- 
erty abutting  on  a  street  by  the  constitutional  provi- 
sions cited  in  this  chapter,  consequent  on  the  author- 
ized vacating  of  the  street  by  the  proper  authorities.-^ 
Granting  that  such  right  to  compensation  exists,  in  a 
given  case,  the  owner's  right  to  an  injunction  until 
damages  are  paid  or  secured  would  seem  to  depend  on 
the  usual  principles  regulating  injunction  against  the 
exercise  of  the  eminent  domain  power,  where  the  abut- 
ter's easements  in  the  street  are  taken  or  impaired.^" 

§  472.  Acquiescence. — The  equitable  doctrine  of  acqui- 
escence is  freely  applied  to  cases  involving  eminent  do- 

35,  31  Pac.  313,  32  Pac.  214,  18  L.  R.  A.  161;  Searle  v.  City  of  Lead, 
10  S.  D.  312,  73  N.  W.  101,  39  L.  R.  A.  315.  Contra,  Moore  v. 
City  of  Atlanta,  70  Ga.  611;  compare  Hurt  v.  City  of  Atlanta,  100 
Ga.  280,  28  S.  E.  65  (no  injunction  against  bridge  in  street  where 
no  actual  damage  shown).  In  the  well-considered  case  of  Geur- 
kink  V.  City  of  Petaluma,  112  Cal.  306,  44  Pac.  570,  it  was  held  that 
a  city  should  be  enjoined  from  so  changing  a  natural  watercourse 
as  to  damage  an  abutting  owner's  property  by  preventing  a  free 
access  to  and  use  thereof,  unless  compensation  for  such  damage 
should  be  first  made,  or  paid  into  court,  for  him. 

"Where  it  is  held  that  the  payment  of  consequential  damages  is 
not  a  condition  precedent,  no  injunction  will  issue  to  prevent  a 
change  of  grade:  Clemens  v.  Connecticut  Mut.  Life  Ins.  Co.  (Mo.). 
82  S.  W.  1. 

29  See  Lewis,  Eminent  Domain,   §   134. 

30  That  injunction  will  issue  at  the  suit  of  owner  whose  property 
abuts  on  the  part  vacated,  or  whose  access  to  his  property  is  de- 
stroyed by  the  vacating,  but  not  where  other  means  of  access  remain 
to  the  owner,  see  McQuigg  v.  Cullins,  56  Ohio  St.  649,  47  N.  E.  595; 
Kinnear  v.  Beatty,  65  Ohio  St.  264,  87  Am.  St.  Eep.  600,  62  N.  E. 
341;  Glasgow  v.  City  of  St.  Louis,  107  Mo.  198,  17  S.  W.  743;' 
Wooters  v.  City  of  Crockett,  11  Tex.  Civ.  App.  474,  33  S.  W.  391. 
See,  also,  Parker  v.  Catholic  Bishop  of  Chicago,  146  111.  158,  34  N. 
E.  473  (where  property  is  merely  injured,  tender  of  compensation 
is  not  a  condition  precedent  to  exercise  of  eminent  domain  power) ; 
McLachlan  v.  Incorporated  Town  of  Gray,  105  Iowa,  259,  74  N.  W. 
773  (when  certiorari  an  adequate  remedy);  Prince  v.  McCoy,  40 
Iowa,  533   (no  injunction  where  plaintiff  not  injured). 


787  INJUNCTION;    EMINENT   DOMAIN.  §  472 

main  rights.  The  underlying  principle  of  the  constitu- 
tional provisions  allowing  the  taking  of  private  prop- 
erty is  that  it  is  to  be  devoted  to  public  use.  Hence, 
when  a  landowner  stands  by  until  the  public  has  ac- 
quired an  interest  in  the  use,  there  is  a  strong  reason 
for  applying  the  doctrine,  in  addition  to  the  familiar 
grounds  governing  its  application  to  other  cases.  The 
United  States  supreme  court  in  a  recent  case^^  has 
laid  down  the  rule  in  no  uncertain  language.  "If  one, 
aware  of  the  situation,  believes  he  has  certain  legal 
rights,  and  desires  to  insist  upon  them,  he  should  do 
so  promptly.  If  by  his  declarations  or  conduct  he  leads 
the  other  party  to  believe  that  he  does  not  propose  to 
rest  upon  such  rights  but  is  willing  to  waive  them  for 
a  just  compensation,  and  the  other  party  proceeds  to 
great  expense  in  the  expectation  that  payment  of  a  fair 
compensation  will  be  accepted  and  the  right  waived — 
especially  if  it  is  in  respect  to  a  matter  which  will 
largely  affect  the  public  convenience  and  welfare — a 
court  of  equity  may  properly  refuse  to  enforce  those 
rights,  and,  in  the  absence  of  an  agreement  for  com- 
pensation, compel  him  to  submit  the  determination  of 
the  amount  thereof  to  an  impartial  tribunal."  Accord- 
ingly, when  a  landowner  stands  by  and  makes  no  at- 
tempt to  enjoin  a  railroad  company  from  building  over 
his  land  until  large  expenditures  have  been  made,  or 
the  road  has  been  completed,  injunctive  relief  will  be 
denied,  and  the  party  will  be  left  to  his  remedy  at  law 
for  damages.^2     The  same  principle  applies  to  the  lay- 

31  City  of  New  York  v.  Pine,  185  U.  S.  93,  22  Sup.  Ct.  592,  46  L. 
ed.  820,  quoting  Pom.  Eq.  Jur.,  §  418,  and  many  cases.  See,  also, 
Goodin  v.  Cincinnati  &  W.  Canal  Co.,  18  Ohio  St.  169,  98  Am. 
Dec.  95;  Bravard  v.  Cincinnati,  H.  &  I.  R.  Co.,  115  Ind.  1,  17  N. 
E.  183;  Midland  Ry.  Co.  v.  Smith,  135  Ind.  348,  35  N.  E.  284;  Mid- 
land Ry.  Co,  V.  Smith,  113  Ind.  233,  15  N.  E.  256. 

32  Midland  Ry.   Co.  v.  Smith,  135  Ind.  348,  35  N.  E.  284;   Louis- 


5  473  EQUITABLE    REMEDIES.  788 

ing  of  pipes  or  to  a  taking  for  any  other  public  usa^^ 
And  although  permission  is  granted  to  take  upon  the 
distinct  understanding  that  compensation  is  to  be 
made,  an  injunction  will  not  issue,  after  the  work  has 
been  done,  for  the  purpose  of  enforcing  payment.^^  The 
doctrine  also  applies  to  cases  involving  the  rights  of 
railroads  in  streets.^^ 

§  473.  Assessment  of  Damages  by  the  Court,  with  Injunc- 
tion as  Alternative  to  Their  Payment. — "Where  a  corpora- 
tion which  has  the  right  to  acquire  property  by  an  ex- 

ville,  N.  A.  &  C.  By.  Co.  v.  Beck,  119  Ind.  124,  21  N.  E.  471;  Eoss 
V.  Elizabeth  E.  E.  C«.,  2  N.  J,  Eq.  422;  Erie  Ey.  Co.  v.  Delaware,  L. 
k  W.  E.  Co.,  21  N,  J.  Eq.  283.  And  the  rule,  of  course,  applies  when 
the  road  is  built  at  the  owner's  instigation:  Pettibone  v.  La  Crosse 

6  M.  E.  Co.,  14  Wis.  443. 

33  Biddler  v.  Wayne  Waterworks  Co.,  190  Pa.  St.  94,  42  Atl. 
380;  Kincaid  v,  Indianapolis  N.  G.  Co.,  124  Ind.  577,  19  Am.  St. 
Eep.  113,  24  N.  E.  1066,  8  L.  E.  A.  602. 

34  Florida  Southern  E.  Co.  v.  Hill,  40  Fla.  1,  74  Am.  St.  Eep.  124, 
23   South.   566. 

35  Ilinnershitz  v.  United  Traction  Co.,  199  Pa.  St.  3,  48  Atl.  874; 
Baltimore  &  O.  E.  Co.  v.  Strauss,  37  Md.  237;  Ferguson  v.  Covington 
&  C.  El.  E.  &  T.  &  B.  Co.,  108  Ky.  662,  57  S.  W.  460;  Byron  v. 
Louisville  &  N.  E.  Co.,  22  Ky.  Law  Eep.  1007,  59  S.  W.  519;  Heilman 
V.  Lebanon  &  A.  St.  Ey.  Co.,  175  Pa.  St.  188,  34  Atl.  647,  180  Pa. 
St.  627,  37  Atl.  119.  In  the  New  York  Elevated  Eailroad  cases  tlie 
doctrine  of  laches,  as  distinguished  from  estoppel,  is  held  inap- 
plicable upon  this  principle:  "It  must  be  regarded  as  settled  in 
this  state  that  the  doctrine  of  acquiescence  or  laches  as  a  defense 
to  an  equity  action  is  limited  to  actions  of  an  equitable  nature 
exclusively,  or  to  those  where  the  legal  right  has  expired,  or  the 
party  has  lost  his  right  of  property  by  prescription  or  adverse 
possession;  and  that,  where  a  legal  right  is  involved,  and  upon 
grounds  of  equity  jurisdiction  the  courts  have  been  called  upon  to 
sustain  the  legal  right,  the  mere  laches  of  a  party,  unaccompanied 
by  circumstances  amounting  to  an  estoppel,  constitute  no  defense": 
Syracuse  Solar  Salt  Co.  v.  Eome,  W.  &  O.  E.  Co.,  67  Hun,  153,  22 
N.  Y.  Supp.  321.  See,  also,  Galway  v.  Metropolitan  El.  E.  Co.,  128 
N.  Y.  145,  28  N.  E.  479,  13  L.  E.  A.  788;  Brush  v.  Manhattan  El. 
E.  Co.,  13  N.  Y.  Supp.  908.  In  the  latter  case  relief  was  allowed 
ton  years  after  the  construction  of  the  road. 


789  INJUNCTION;    EMINENT   DOMAIN.  S  473 

ercise  of  the  power  of  eminent  domain  has  taken  pos- 
session of  property,  and  has  erected  or  is  engaged  in 
the  erection  of  structures  thereon,  but  has  not  complied 
with  some  condition  precedent  necessary  to  render  its 
acts  in  all  respects  lawful  (such,  for  instance,  as  a  fail- 
ure on  its  part  to  pay  some  person  the  damages  neces- 
sarily incident  to  the  maintenance  of  the  structure), 
and  such  person  appeals  to  a  court  of  equity  for  an  in- 
junction to  restrain  the  maintenance  or  to  compel  the 
removal  of  the  structure,  the  court  to  which  such  ap- 
peal is  made  has  the  power  to  determine  the  amount  of 
unpaid  damages,  and  to  withhold  an  injunction,  and 
direct  that  the  structure  be  permitted  to  remain  and  be 
operated,  provided  the  assessed  damages  are  paid. 
Courts  of  equity  will,  as  it  seems,  the  more  readily  pur- 
sue such  a  course  when  important  public  interests  are 
at  stake,  and  a  contrary  course  would  be  productive 
of  much  public  inconvenience  and  annoyance. "^^  This 
rule  applies  with  special  force  when  the  complainant, 
by  making  no  objection,  acquiesces  in  the  work.  It 
finds  frequent  application  in  the  New  York  Elevated 
Railroad  cases,  which  are  discussed  elsewhere  in  this 
chapter.^^ 

36  St.  Paul,  M.  &  M.  Ky,  Co.  v.  Western  Union  Tel.  Co.,  118  Fed. 
497,  55  C.  C.  A.  263,  per  Thayer,  Cir.  J.  See,  also,  City  of  New 
York  V.  Pine,  185  U.  S,  93,  22  Sup.  Ct.  592,  46  L.  ed.  820;  McElroy 
T.  Kansas  City,  21  Fed.  257;  Cowan  v.  Southern  Ey.  Co.,  118  Ala. 
554,  23  South.  754;  Benjamin  v.  Brooklyn  Unioa  El.  E.  Co.,  120  Fed, 
428. 

37  See  ante,  |  470. 


{  474  EQUITABLE   EEMEDIES.  790 


CHAPTER  XXI. 


INJUNCTIONS  TO  PEEVENT  OR  RESTEAIN  THE 
COMMISSION  OF  TOETS  IN  GENERAL;  TO  RE- 
STRAIN CRIMINAL  ACTS, 

ANALYSIS. 

§  474.  The   estatos   and   interests   generally  legal. 

§  475.  Kinds  and  classes  of  torts  restrained. 

§  476.  Criminal  acts — In  general. 

§  477.  Applications   of  the   principle. 

§  478.  Same — Public   nuisance — Suits   by   individuals. 

§  479.  Same — Same — Suit    by    government. 

§  480.  Same — Eight    of    government    to    enjoin    acts    analogous    to 

nuisance. 

§  481.  Exception— Libel. 

§  474.  The  Estates  and  Interests  Generally  Leg-al. — ^'Tlie 
estates,  interests,  and  primary  rights  to  be  secured  by 
injunctions  of  this  kind  are  in  most  instances  legal; 
and  the  injunctions  themselves,  as  a  class,  are  fre- 
quently described  as  those  for  the  protection  of  legal 
rights  and  interests.  So  far  as  they  do  thus  sustain 
and  enforce  legal  rights,  they  are,  of  course,  supple- 
mentary to  or  in  lieu  of  the  legal  remedies  which  courts 
of  common  law  originally  gave,  and  perhaps  now  give, 
by  action,  under  the  same  circumstances.  For  this 
reason,  the  general  test  as  stated  in  a  former  paragraph 
applies  with  special  force.  The  inadequacy  of  the  legal 
remedies  is  the  criterion  which  determines  the  exercise 
of  this  preventive  jurisdiction;  and  the  criterion  is  en- 
forced, especially  by  the  American  courts,  with  great 
strictness."^ 

1  Pom.   Lq.   Jur.,   §   1346. 


791  LN  JUNCTION  J  TORTS,  IN  GENEEAL.    ■         §§  475,476 

§  475.  Kinds  and  Classes  of  Torts  Restrained.— "The 
legal  remedy  is  ordinarily  considered  as  adequate  in 
cases  of  torts  to  the  person,  and  to  property  held  by 
a  legal  title,  and  equity  does  not  interfere.  There  are, 
however,  certain  species  of  torts,  in  respect  to  each  of 
which,  as  a  class,  it  is  settled  that  the  legal  remedy  is 
generally  inadequate,  so  that  equity  will  generally  in- 
terfere to  prevent  the  wrong  by  injunction.  There  are 
other  species  of  torts,  in  respect  to  each  of  which,  as  a 
class,  the  legal  remedy  is  adequate,  but  may  become  in- 
adequate, in  individual  instances,  from  their  particu- 
lar circumstances,  so  that  in  those  instances  an  in- 
junction will  be  granted.  In  the  kind  of  torts  for 
which  the  legal  remedy  is  generally  inadequate,  so  that 
an  injunction  is  a  proper  remedy,  the  title  of  the  in- 
jured party  must  be  clear,  the  injury  real,  and  not 
merely  temporary  or  transient.  They  are  waste,  nui- 
sance, including  interference  with  easements,  servi- 
tudes, and  similar  rights,  infringements  of  patent 
rights,  of  copyrights,  of  trade-marks,  and  of  other  in- 
tangible property  rights,  the  pecuniary  value  of  which 
cannot  be  certainly  estimated,  such  as  literary  property 
in  manuscript  writings  and  good-will.  In  ordinary 
trespasses  the  injured  party  is  left  to  his  remedy  of 
damages,  but  the  circumstances  of  a  trespass  to  prop- 
erty— especially  to  real  property — may  be  such  that  the 
compensatory  remedy  is  inadequate,  and  a  court  of 
equity  will  prevent  the  wrong  by  injunction.  "^ 

§  476.  Criminal  Acts — In  General. — A  court  of  equity 
is  in  no  sense  a  court  of  criminal  jurisdiction.  Its  pri- 
mary province  is  the  protection  of    property    rights. 

2  Pom.  Eq.  Jur.,  §  1347.  This  section  is  cited,  to  the  point  that 
the  plaintiff  must  show  a  clear  title,  in  Perkins  Lumber  Co.  v.  Wilkin- 
son   (Ga.),  43  S.  E,  696. 


S  477  EQUITABLE    REMEDIES.  l^Z 

Hence,  an  injunction  will  not  be  granted  to  restrain  an 
act  merely  criminal,  where  no  property  right  is  directly 
endangered  thereby.^  Thus,  an  act  morally  wrong, 
such  as  gambling,  will  not  be  enjoined  at  the  suit  of  an 
individual  •,^  nor  will  a  violation  of  a  Sunday  law  f 
nor  a  violation  of  a  statute,  where  no  property  rights 
are  involved.®  But  where  property  rights  are  endan- 
gered, the  fact  that  the  acts  are  criminal  will  not  pre- 
vent the  court  from  exercising  its  jurisdiction.  The 
United  States  supreme  court,  in  a  leading  case,  has  laid 
down  the  rule  as  follows:  "Something  more  than  the 
threatened  commission  of  an  offense  against  the  laws 
of  the  land  is  necessary  to  call  into  exercise  the  injunc- 
tive powers  of  the  court.  There  must  be  some  inter- 
ferences, actual  or  threatened,  with  property  or  rights 
of  a  pecuniary  nature;  but  when  such  interferences  ap- 
pear the  jurisdiction  of  a  court  of  equity  arises,  and  is 
not  destroyed  by  the  fact  that  they  are  accompanied 
by  or  are  themselves  violations  of  the  criminal  law."^ 

§  477.  Applications  of  the  Principle. — The  instances  of 
the  exercise  of  this  jurisdiction  are  many  and  various. 
All  that  is  necessary  is  a  state  of  fact  which  ordinarily 
gives  rise  to  a  right  for  injunctive  relief.  Thus,  an 
injunction  has  been  granted  to  restrain  a  criminal  tres- 

8  Hamilton-Brown  Shoe  Co.  v.  Saxey,  131  Mo.  212,  52  Am.  St. 
Eep.  622,  32  S.  W.  1106;  Cope  v.  District  Fair  Assn.,  99  111.  489,  39 
Am.  Eep.  30;  Ocean  City  Assn.  v.  Schurch,  57  N.  J.  Eq.  268,  41  Atl. 
914;  People  ex  rel.  L'Abbe  v.  District  Court  of  Lake  Co.,  26  Colo. 
386,  58  Pac.  604,  46  L.  E.  A.  850;  Tiede  v.  Schneidt,  99  Wis.  201, 
74  N.  W.   798. 

4  Cope  V.  District  Fair  Assn.,  99  111.  489,  39  Am.  Eep.  30;  People 
ex  rel.  L'Abbe  v.  District  Court  of  Lake  Co.,  26  Colo.  382,  58  Pac. 
604,  46  L.  E.  A.  850. 

5  Ocean  City  Assn.  v.  Schurch,  57  N.  J.  Eq.  268,  41  Atl.  914; 
York  V.  Yzaguairre,  31   Tex.  Civ.   App,  26,  71  S.  W.  563. 

6  Tiede  v.  Sehneidt,  <!9  Wis.  201,  74  N.  W.  798. 

7  In  re  Dels,  158  U.  S.  5G4,  15  Sup.  Ct.  900,  39  L.  ed.  1092. 


793  INJUNCTION;    CRIMINAL    ACTS.  i  478 

pass  on  oyster  beds;^  and  to  restrain  so-called  "ticket 
scalpers"  from  disposing  of  "round-trip"  tickets  in  vio- 
lation of  a  penal  statute.®  Recently  the  courts  have 
entertained  many  applications  for  injunctive  relief 
against  criminal  acts  by  labor  leaders  and  organiza- 
tions; and  the  same  principle  has  been  applied.  Thus, 
it  is  now  clearly  settled  that  a  court  of  equity  will  en- 
join the  criminal  intimidation  of  workingmen,  in  order 
to  protect  the  property  interests  of  their  employers.^^ 
Similarly,  the  court  will  enjoin  strikers  from  commit- 
ting criminal  acts  of  violence.^^  And  likewise,  it  will 
restrain  a  criminal  conspiracy  of  any  number  of  people 
to  injure  property.^^  These  applications  of  the  rule, 
while  recent,  are  still  in  accordance  with  well-estab- 
lished equitable  principles,  and  will  be  discussed  fully 
and  in  detail  in  a  later  chapter. 

§  478.  Same — Public  Nuisance — Suits  by  Individuals. — 
One  of  the  most  frequent  applications  of  the  principle 
is  to  suits  by  individuals  to  restrain  public  nuisances. 
It  is  a  familiar  principle  of  law  that  an  individual  can- 
not maintain  a  suit  to  abate  or  to  recover  damages  for 
a  public  nuisance  unless  he  suffers  some  special  dam- 

8  Jones  V.  Oemler,  110  Ga.  202,  35  S.  E.  375. 

9  Nashville  &  St.  L.  Ry.  Co.  v.  McConnell,  82  Fed.  65  (dictum). 
See  post,  chapter  XXIX. 

10  Cons.  Steel  &  Wire  Co.  v.  Murray,  80  Fed.  811;  Vegelahn  v. 
Guntner,  167  Mass.  92,  57  Am,  St.  Eep.  443,  44  N.  E.  1077,  35  L.  E. 
A.  722;  Hamilton-Brown  Shoe  Co.  v,  Saxey,  131  Mo.  212,  52  Am. 
St.  Eep.  622,  32  S.  W.  1106.     See  post,  chapter  XXVIII. 

11  Cumberland  Glass  Mfg.  Co.  v.  Glass  Bottle  Blowers'  Assn., 
59  N.  J.  Eq.  49,  46  Atl.  208;  Coeur  d'Alene  Cons.  &  Min.  Co.  v. 
Miners'  Union  of  Wardner,  51  Fed.  260,  19  L.  E.  A.  382.  See  post, 
chapter  XXVIII. 

12  Arthur  v.  Oakes,  63  Fed.  310,  11  C.  C.  A.  209,  25  L.  E.  A, 
414;  Elder  v.  Whitesides,  72  Fed.  724;  Davis  v.  Zimmerman,  91 
Hun,  489,  36  N.  Y.  Supp.  303;  Longshore  Printing  Co.  v.  Howell, 
26  Or.  527,  46  Am.  St.  Eep.  640,  38  Pac.  547,  28  L.  E.  A.  464. 


§  478  EQUITABLE    REMEDIES.  794 

age  different  and  other  from  that  suffered  by  the  rest 
of  the  community.  Hence  it  follows  that  equity  will 
not  enjoin  a  public  nuisance  at  the  suit  of  an  individual 
unless  he  has  suffered  or  is  likely  to  suffer  such  dam- 
age as  would  entitle  him  to  maintain  an  action  at 
law.  "Where  the  injury  resulting  from  the  nuisance 
is,  in  its  nature,  irreparable,  as  when  loss  of  health, 
loss  of  trade  or  destruction  of  the  means  of  subsistence, 
or  permanent  ruin  to  property  will  ensue  from  the 
Avrongful  act  or  erection,  courts  of  equity  will  inter- 
fere by  injunction,  in  furtherance  of  justice  and  the 
violated  rights  of  property."^^  Thus,  a  party  specially 
injured  may  enjoin  the  maintenance  of  a  house  of  ill- 
fame,  although  it  be  a  crime  to  use  property  for  such  a 
purpose.^*  Likewise,  a  person  who  would  suffer  a 
special  injury  by  an  explosion  may  obtain  an  injunction 
to  restrain  the  criminal  storage  of  nitroglycerin  within 
the  limits  of  a  city.^^  Again,  an  injunction  will  be 
granted  to  a  person  specially  injured  to  prevent  the  re- 
moval of  a  wooden  building  from  outside  to  within  the 
fire  limits  of  a  town  in  violation  of  an  ordinance,^ ^  or 
to  restrain  the  erection  of  such  a  building  within  the 
fire  limits,^ '^  where  the  act  if  carried  out  would  amount 
to  a  nuisance;  but  the  mere  violation  of  the  ordinance 
is  no  ground  for  relief  unless  the  acts  themselves  ac- 
tually constitute  a  nuisance.^*     Again,  an  individual 

13  Wahle  V.  Eeinback,  76  111.  322;  Barrett  v,  Mt.  Greenwood 
Cemetery  Assn.,  159  111.  385,  50  Am.  St,  Eep.  168,  42  N.  E.  891,  31 
L.  R.  A.  109.     See  post,  chapter  XXIV, 

14  Cranford  v.  Tyrrel,  128  N.  Y.  341,  28  N.  E.  514.  But  see 
Neaf  V.  Palmer,  103  Ky.  496,  45  S.  W.  506,  41  L.  E.  A.  219, 

15  People's  Gas  Co.  v.  Tyner,  131  Ind.  277,  31  Am.  St.  Eep.  433, 
31  N.  E.  59,  16  L.  R.  A.  443. 

16  Kaufman  v.  Stein,  138  Ind.  49,  46  Am.  St.  Eep.  368,  37  N.  E. 
333. 

17  Villagje  of  St.  John  v.  McFarlan,  33  Mich.  72,  20  Am.  Eep.  671. 

18  Village  of  New  Rochelle  v.  Lang,  75  Hun,  608,  27  N.  Y.  Supp. 


795  INJUNCTION;    CRIMINAL    ACTS.  fi  478 

may  obtain  an  injunction  to  restrain  the  criminal  sale 
of  liquor  when  he  is  specially  injured  thereby.  In  such 
a  case  a  clear  injury  to  property  greater  than  that  suf- 
fered by  the  general  public  must  be  shown.^^ 

While,  independently  of  statute,  a  private  individual 
cannot  maintain  an  action  to  restrain  a  public  nuisance 
unless  he  has  suffered  special,  pecuniary  or  property  in- 
jury, it  seems  that  there  is  no  objection  to  such  an  ac- 
tion without  such  injury  when  a  statute  authorizes  it. 
*'It  is  surely  within  the  power  of  the  legislature  to  desig- 
nate the  persons  at  whose  suit  a  nuisance  may  be  en- 
joined and  abated.  The  reason  for  the  rule  which 
formerly  obtained,  that  a  private  action  will  not  lie  for 
a  public  nuisance  without  special  damages,  was  that 
to  authorize  private  actions  would  create  a  multiplicity 
of  suits,  one  being  as  well  entitled  to  bring  an  action  as 
another.  But  because  the  enforcement  of  a  statute  may 
create  a  multiplicity  of  actions  is  no  ground  for  de- 
claring   it    unconstitutional There    can    be    no 

doubt  that  it  is  within  the  power  of  the  legislature  to 
designate  the  person  or  class  of  persons  who  may  main- 
tain actions  to  restrain  and  abate  public  nuisances,  and 
when  that  is  done  the  action  is  for  all  purposes  an  ac- 
tion instituted  in  behalf  of  the  public,  the  same  as 
though  brought  by  the  attorney  general  or  public  pros- 
ecutor."^"  Under  such  a  statute,  the  plaintiff  in  the 
case  cited  was  granted  an  injunction  to  restrain  de- 
fendant from  criminally  selling  liquor,  although  the 
plaintiff  could  show  no  special  damage. 

COO;  Waupun  v.  Moore,  34  Wis.  450,  17  Am.  Rep.  446;  Inc.  Town 
of  Rochester  v.  Walters,  27  Ind.  App.  194,  60  N.  E.  1101. 

19  O'Brien   y.   Harris,   105   Ga.   732,   31   S.   E.   745. 

20  Littleton  v.  Fritz,  65  Iowa,  488,  54  Am,  Rep.  19,  22  N.  W. 
641. 


I  479  EQUITABLE    EEMEDIES.  796 

§  479.  Same — Same — Suit  by  Government — As  a  public 
nuisance  concerns  the  public  generally,  it  is  the  duty 
of  the  government  to  take  measures  to  abate  or  enjoin 
it.  Hence  it  follows  that  the  government  can  obtain  an 
injunction  to  restrain  a  public  nuisance,  without  show- 
ing any  property  right  in  itself.  The  duty  of  protect- 
ing the  property  rights  of  all  its  citizens  is  sufficient  to 
warrant  issuing  the  injunction.  Therefore,  wherever  a 
public  nuisance  is  shown,  equity  must  enjoin  it  at  the 
suit  of  the  government.  "Every  place  where  a  public 
statute  is  openly,  publi«|ly,  repeatedly,  continuously, 
persistently  and  intentionally  violated,  is  a  public  nui- 
sance."^^  This  definition  does  not  include  all  public 
nuisances,  by  any  means;  but  it  includes  a  class  par- 
ticularly covered  by  the  principle  under  discussion.  In- 
junctions obtained  by  the  state  to  restrain  the  criminal 
sale  of  intoxicating  liquors  are  among  the  most  numer- 
ous of  this  class.  Writs  of  this  kind  have  been  granted 
to  restrain  violations  of  prohibition  laws,^^  and  to  re- 
strain the  maintenance  of  gambling-houses.^*     Where 

21  State  V.  Crawford,  28  Kan.  726,  42  Am.  Eep.  182. 

22  State  V.  Crawford,  28  Kan.  726,  42  Am.  Eep.  182;  State  v. 
Greenway,  92  Iowa,  472,  61  N.  W.  239;  State  v.  Marston,  64  N.  H. 
603,  15  Atl.  222,  The  case  of  Manor  Casino  v.  State  (Tex.),  34 
S.  W.  769,  seems  contra  to  the  proposition  laid  down  in  the  text. 
The  court  there  held  that  in  the  absence  of  statute  equity  will  not 
enjoin  the  criminal  sale  of  liquor  at  the  suit  of  the  state,  unless 
property  rights  are  involved.  It  is  possible  that  the  cases  may  be 
reconciled  on  the  theory  that  the  sale  of  liquor  is  not  of  itself  a 
nuisance.  While  the  legislature  cannot  declare  every  act  a  nuisance 
(State  v.  Saunders,  66  N.  H.  39,  25  Atl.  588,  18  L.  E.  A.  646),  it  can 
declare  such  an  act  aa  selling  liquor  to  be  a  nuisance.  When  an 
act  is  a  nuisance  it  prima  facie  affects  property  rights,  and  hence  it 
can  clearly  be  enjoined.  Thus,  where  criminally  selling  liquor  ia 
a  public  nuisance,  as  it  apparently  is  in  Kansas,  Iowa  and  New 
Hampshire,  equity  will  interfere;  where  it  ia  not,  equity  will  not 
interfere. 

23  State  V.  Noyes,  30  N.  H.  279.  The  case  of  State  v.  Patterson, 
14  Tex.  Civ.  App.  465,  37  S.  W.  478,  which  seema  contra,  may   b« 


yyr  INJUNCTION;  CRIMINAL  ACTS.  {  480 

prizefii^liting  is  regarded  as  a  public  nuisance,  the  state 
may  enjoin  individuals  from  taking  any  part  in  such 
contests,  and  from  in  any  way  aiding  therein.^*  Of 
course,  cases  involving  purprestures^^  or  in  which  the 
defendant  is  emptying  refuse  into  a  public  stream,^^  are 
clearly  within  the  general  principle. 

§  480.  Same — Right  of  Government  to  Enjoin  Act  An- 
alogous to  Nuisance — While  the  right  of  the  government 
to  obtain  an  injunction  to  restrain  criminal  acts  is  not 
confined  strictly  to  cases  of  nuisance,  it  would  seem 
that  it  should  be  limited  to  cases  closely  analogous. 
Such  relief,  if  applied  to  criminal  acts  in  general,  would 
supersede  the  criminal  law  and  deprive  parties  of  the 
right  to  a  jury  trial.  Where  the  property  rights  of 
many  citizens  are  involved,  it  is  proper  for  the  govern- 
ment, on  their  behalf,  to  invoke  the  powers  of  equity; 
and  it  would  seem  that  only  in  such  a  case  should  the 
jurisdiction  be  assumed.^'^     By  sta,tute,  it  is  provided 

supported  on  the  theory  that  gambling  is  not  a  public  nuisance  in 
Texas. 

24  Columbian  Athletic  Club  v.  State,  143  Ind.  98,  52  Am.  St.  Eep. 
407,  40  N.  E.  914,  28  L.  E.  A.  727. 

25  Attorney-General  v.  Cohoes  Co.,  6  Paige  Ch.  133,  29  Am.  Dec. 
755. 

26  People  V.  Truckee  Lumber  Co.,  116  Cal.  397,  58  Am.  St.  Eep. 
183,  48  Pac.  374,  39  L.  E.  A.  581. 

27  In  the  case  of  In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900,  39 
L.  ed.  1092,  the  court  said:  "Every  government,  intrusted  by  the 
very  terms  of  its  being  with  powers  and  duties  to  be  exercised  and 
discharged  for  the  general  welfare,  has  a  right  to  apply  to  its  own 
courts  for  any  proper  assistance  in  the  exercise  of  the  one  and  the 
discharge  of  the  other,  and  it  is  no  sufficient  answer  to  its  appeal 
to  one  of  those  courts  that  it  has  no  pecuniary  interest  in  the  mat- 
ter. The  obligations  which  it  is  under  to  promote  the  interest  of 
all  and  to  prevent  the  wrongdoing  of  one,  resulting  in  injury  to  the 
general  welfare,  is  often  of  itself  sufficient  to  give  it  a  standing  in 
court."  While  this  language  is  broad,  it  will  be  observed  upon 
examination  of  the  case  that  property  rights  both  of  the  government 


S  481  EQUITABLE    REMEDIES.  798 

that  violations  of  the  interstate  commerce  act  may  be 
restrained  at  suit  of  the  United  States.^* 

§  481.  Exception — ^Libel. — An  exception  to  the  general 
rule  that  equity  will  restrain  a  crime  at  suit  of  an  in- 
dividual when  property  rights  are  involved,  exists  in 
cases  of  libel.  The  early  English  cases  laid  down  the 
rule  as  stated,  and  held  that  equity  has  no  jurisdiction 
to  restrain  libels.^^  It  will  be  noticed,  however,  that  in 
most  cases  of  libel  property  rights  are  only  indirectly, 
if  at  all,  involved.  But  in  cases  where  a  man  is  directly 
libeled  in  his  business,  there  is  a  question  of  property 
right  Eealizing  this,  the  later  English  cases,  aided 
somewhat  by  statute,  have  receded  from  their  former 
view,  and  will  now  restrain  a  libel  when  it  directly 
affects  business.^^  The  American  states,  however,  have 
generally  refused  to  adopt  the  later  rule.  The  rule  was 
established  in  cases  in  which  no  property  right  was  di- 
rectly involved,^^  and  is  now  so  firmly  settled,  that  it 
has  been  expressly  held  that  libels  will  not  be  enjoined 
even  for  the  protection  of  property.^^     This  outcome  is 

and  of  many  of  its  citizens  were  involved.  It  is  believed  that  the 
jurisdiction  will  not  be  extended  to  crimes  which,  while  injurious 
to  society,  do  not  directly  affect  any  property  right. 

28  See  United  States  v.  Elliott,  62  Fed.  801;  Toledo,  A.  A.  &  N. 
M.  R.  Co.  V.  Penn.  Co.,  54  Fed.  730,  19  L.  E.  A.  387;  and  see  post, 
chapter  XXVIII. 

29  Prudential  Assur.  Co.  v.  Knott,  L.  E.  10  Ch,  App.  142. 

30  Thorley's  Cattle-food  Co.  v.  Massam,  14  Ch.  D.  763;  Thomas  v. 
Williams,  14  Ch.  D.  864;  Loog  v.  Bean,  26  Ch.  D.  306. 

31  Brandreth  v.  Lance,  8  Paige  Ch.  24,  34  Am.  Dec.  368;  Boston 
Diatite  Co.  v.  Florence  Mfg.  Co.,  114  Mass.  69,  19  Am.  Eep.  310. 

32  De  Wick  v.  Dobson,  18  App.  Div.  399,  46  N.  Y.  Supp.  390;  Kidd 
V.  Horry,  28  Fed.  773.  A  compromise  between  the  English  and  the 
American  views  was  reached  in  Beck  v.  Eailway  Teamsters'  Pro- 
tective Union,  118  Mich.  497,  74  Am.  St.  Eep.  421,  77  N.  W.  13, 
42  L.  E.  A.  407.  It  was  there  held  that  a  court  of  equity  will  re- 
strain the  publication  of  a  libel  consisting  of  a  boycotting  circular, 


799  INJUNCTION;   CRIMINAL  ACTS.  S  481 

in  part  the  result  of  a  desire  not  to  place  any  more  re- 
strictions upon  the  exercise  of  free  speech  than  are  ab- 
solutely necessary. 

when  the  acts  are  accompanied  by  threats,  express  or  covert,  or 
intimidation  and  coercion,  and  the  accomplishment  of  the  purpose 
will  result  in  irreparable  injury  to  property.  See,  further,  on  this 
Bubject,  post,  chapter  XXTX. 


i  482  EQUITABLE    EEMEDIES.  800 


CHAPTER  XXII. 


INJUNCTION  AGAINST  WASTE. 

ANALYSIS. 

§  482.  Origin  and  nature  of  the  jurisdiction. 

J  5  483-490.  Extent    of    equity    jurisdiction. 

§  483.  Legal   waste. 

§  484.  Waste   must   be   threatened. 

§  485.  Legal  waste  which  is  not  subject  to  injunction. 

§  486.  Must  the  injury  be  irreparable? 

§  487.  Plaintiff's    title. 

§  488.  Title  in  dispute. 

§  489.  Equitable  waste — Definition. 

§  490.  Extent  of  jurisdiction. 

§  491.  Eelief  against  waste  in  equity. 

§  492.  Parties  for  and  against  whom  injunction  will  issue. 

§  4S2.  Origin  and  Nature  of  the  Jurisdiction. — "Waste  is 
the  destruction  or  improper  deterioration  or  material 
alteration  of  things  forming  an  essential  part  of  the  in- 
heritance, done  or  suffered  by  a  person  rightfully  in 
possession  by  virtue  of  a  temporary  or  partial  estate, — 
as,  for  example,  a  tenant  for  life  or  for  years.  The  right- 
ful possession  of  the  wrongdoer  is  essential,  and  con- 
stitutes a  material  distinction  between  waste  and  tres- 
pass."^ The  jurisdiction  of  the  common  law  over  waste 
was  curiously  defective.  Originally  an  action  at  com- 
mon law  for  waste  lay  only  against  a  defendant  whose 
estate  was  created  by  law,  on  the  theory  that  as  to  es- 
tates created  by  the  owner  of  the  fee,  provision  against 
waste  should  be  made  against  it  by  himself  or  else  it 
was   his  own   default.     This   narrow   jurisdiction    was 

1  4  Pom.  Eq.  Jur.,  §  1348.  I'or  the  substance  of  this  and  the  foui 
sueceoding  ehnpters  the  author  is  indebted  to  Mr.  J.  T.  Burchanx 
formerly  instructor  in     Equity  in  Stanford  University. 


801  INJUNCTION    AGAINST    WASTE.  §  482 

early  enlarged  by  statutes,-  which,  however,  gave  a  rem- 
edy only  in  favor  of  one  having  an  immediate  estate  of 
inheritance,  so  that  a  person  holding  any  estate  less 
than  a  fee,  or  one  whose  estate  in  fee  Avas  preceded  by  a 
smaller  estate,  had  still  no  remedy  at  law.^  It  is  evi- 
dent that  in  such  a  situation  there  was  a  twofold  reason 
for  the  interposition  of  equity  to  prevent  waste.  In  the 
first  place,  from  its  very  nature  waste  was  a  wrong 
such  that  the  legal  remedy  of  damages  was  inadequate. 
It  involved  as  its  chief  characteristic  a  serious  injury  to 
real  property,  and,  on  this  ground  alone,  a  preventive 
remedy  was  necessary.  It  is  true  that  the  writ  of 
estrcjiement  was  a  preventive  remedy,  but  at  best  it  was 
only  an  auxiliary  to  real  actions  to  preserve  property 
pendente  lite/  and  hence  had  no  application  to  the  or- 
dinary case  of  waste  in  which  no  question  was  made  as 
to  the  tenant's  right  to  possession.  In  the  second  place, 
the  fact  that  there  was  in  a  large  class  of  cases  no  rem- 
edy at  all  at  law,  furnished  a  sufficient  ground  for  the 
jurisdiction  of  equity — at  least  in  those  cases.^  Of  the 
two  reasons,  the  first  was  the  controlling  one,  however, 
and  the  second  was  apparently  often  regarded  as  re- 
quiring some  explanation  to  prove  that  it  was  not  an 
obstacle  to,  rather  than  a  ground  of,  equity  jurisdiction.® 

2  Statutes  of  Marlebridge  (52  Hen.  Ill,  c.  23)  and  Gloucester  (6 
Edw.  I,  c.  5). 

3  2  Black.  Com.,  282,  283;  3  Id.  227. 

4  3   Black.   Com.,   225-227. 

5  See  suggestion  of  counsel  in  Castlemain  v.  Craven,  22  Vin.  Abr. 
523;  Skelton  v.  Skelton,  "2  Swanst.  170. 

6  Farrant  v.  Lovell,  3  Atk.  723;  Perrot  v.  Perrot,  3  Atk.  94; 
Kane  v.  Vanderburgh,  1  Johns.  Ch.  11.  The  explanation  of  this 
attitude  of  the  chancery  courts  doubtless  lay  in  the  fact  that  equity 
jurisdiction  over  torts  was  primarily  to  furnish  a  better  remedy  for 
a  legal  wrong.  Hence  in  determining  the  existence  of  the  wrong, 
and  from  that  inferring  the  right  to  a  remedy,  the  equity  judges 
were  accustomed  to  follow  the  rule  of  law.     Consequently  they  felt 

Equitable  Kemedies,  Vol.  I — 51 


S  483  EQUITABLE   REMEDIES.  802 

The  fact  that  waste  is  nearly  always  an  irreparable  in- 
jury has  resulted  in  the  full  establishment  of  the  rem- 
edy by  injunction,  whether  in  a  case  where  there  is  or 
is  not  a  legal  remedy;  and  because  prevention  is  of 
greater  efficacy  than  damages  after  the  event,  the  equi- 
table remedy  has  not  only  virtually  superseded  the  old 
common-law  "action  of  waste,"  but  has  to  a  great  ex- 
tent taken  the  place  of  the  "action  on  the  case"  for  dam- 
ages,''^  which  might  have  supplied  the  lack  of  a  remedy 
at  law  to  those  remainder-men  who  could  not  comply 
with  the  strict  requisite  of  the  statute  of  Gloucester.* 

§  483.  Extent  of  Equity  Jurisdiction — Legal  Waste. — In 
entering  upon  a  fuller  discussion  of  the  jurisdiction  of 
equity  over  waste  it  will  be  convenient  to  follow  the 
lines  of  old  and  familiar  classification,  and  treat,  first 
of  Legal  Waste^  which  is  the  waste  that  courts  of  law 
always  recognized  (though  they  did  not  in  all  cases  give 
a  remedy  for  it),  and,  next,  of  Equitable  Waste^  which 
is  the  waste  that,  by  the  rules  of  the  common  law,  is 
permitted  to  a  tenant  in  possession,  but  which  courts  of 
equity  nevertheless  do  not  allow.  It  has  already  been 
pointed  out  that  from  its  very  definition  waste  gen- 
erally falls  within  that  class  of  injuries  which  courts 
of  equity  deem  irreparable  and  therefore  not  to  be  ade- 
quately remedied  at  law.^     Hence  injunctions  against 

the  need  of  explaining  why  they  gave  a  remedy  where  the  courts 
of  law  did  not.  So,  Lord  Hardwicke,  in  Perrot  v.  Perrot,  supra, 
said  it  was  an  "accident"  that  there  was  no  legal  remedy  in  the 
class  of  cases  under  discussion,  and  Lord  Nottingham,  in  Skelton 
V.  Skelton,  2  Swanst.  170,  took  the  distinction  that  the  tenant  who 
coniinitted  waste  in  such  cases  had  "only  impunitatem"  and  not  "a 
right  in  the  thing  itself." 

7  4  Pom.   Eq.   Jur.,   §    1348. 

8  See  cases  collected  in   1  Ames,  Cases  in  Eq.  Juris.,  467,  note  1, 
468,  note   1. 

»  In    Vandemark   v.   Schoonmaker,   9   Hun,   11,   the   court   used   the 


803  INJUNCTION    AGAINST    WASTE.  §  483 

legal  waste  have  always  been  common,  and  the  jurisdic- 
tion extensive.  Illustrations  are  injunctions  against 
cutting  timber,^*  changing,  destroying  or  removing 
buildings,  or  the  erection  of  new  buildings,^^  taking 
minerals,  gas  or  stone,^^  changing  the  character  of 
land,^^  taking  away  crops,  or  manure,^ ^  and  improper 
modes  of  tillage.^  ^     It  should  be  noted  in  this  connec- 

following  language:  "Waste  has  always  been  a  subject  of  chan- 
cery jurisdiction.  It  is  generally  irreparable  in  its  results,  and  hence 
especially  within  the  restraining  power  of  that  court.  And  it  has 
been  well  remarked  that  courts  of  equity  will  exercise  a  liberal  juris- 
diction in  respect  to  waste,  and  in  its  restraint." 

10  Duvall  V.  Waters,  1  Bland  (Md.),  569,  18  Am.  Dec.  350;  Sarles 
V.  Sarles,  3  Sandf.  Ch.  601;  Kerlin  v.  West,  4  N.  J.  Eq.  449;  Kane  v. 
Vanderburgh,  1  Johns.  Ch.  11;  Hawley  v.  Clowes,  2  Johns.  Ch.  122; 
Kyle  V.  Ehodes,  71  Miss.  487,  15  South.  40;  State  v.  Judge,  52  La. 
Ann.  1037,  26  South.  769;  Jones  v.  Britton,  102  N.  C.  166,  9  S.  E. 
554,  4  L.  E.  A.  178;  Elliott  v.  Boyd,  40  Or.  326,  67  Pac.  202. 

11  Jungerman  v.  Bovee,  19  Cal.  354;  Palmer  v.  Young,  108  HI. 
A  pp.  252;  Maddox  v.  White,  4  Md.  72,  59  Am.  Dec.  67;  Snyder  v. 
Hopkins,  31  Kan.  557,  3  Pac.  367;  Woods  v.  Early,  95  Va.  307,  28 
S.  E.  374;  Tate  v.  Field,  57  N.  J.  Eq.  53,  40  Atl.  206;  Brock  v.  Dole, 
66  Wis.  142,  28  N.  W.  334;  Davenport  v.  Magoon,  13  Or.  1,  57  Am. 
Eep.    1. 

12  Whitfield  V.  Bewit,  2  P.  Wms.  240;  Gerkins  v.  Kentucky  Salt 
Co.,  100  Ky.  734,  66  Am.  St.  Kep.  370,  39  S.  W.  444;  Smith  v.  City 
Council  of  Eome,  19  Ga.  89,  83  Am.  Dec.  298;  Chambers  v.  Alabama 
Iron  Co.,  67  Ala.  353;  Binswanger  v.  Henninger,  1  Alaska,  509;  Will- 
iamson V.  Jones,  43  W.  Va.  562,  64  Am.  St.  Eep.  891,  27  S.  E.  411,  38 
L.  E.  A.  694. 

13  Pulteney   v.    Shelton,    5    Ves.    259,   note;    Onslow   v. ,    16 

Ves.  173;  Snyder  v.  Hopkins,  31  Kan.  557,  3  Pac.  367. 

14  Pulteney   v.   Shelton,    5    Ves.    259,    note;    Onslow   v. ,    16 

Ves.  173;  Manning  v.  Ogden,  70  Hun,  399,  24  N.  Y.  Supp.  70;  Baker 
V.  National  Biscuit  Co.,  96  111.  App.  228;  Ashby  v.  Ashby  (N.  J.),  40 
Atl.  118. 

15  Wilds  V.  Layton,  1  Del,  Ch.  226,  12  Am.  Dec.  91.  Miscellaneous 
cases  which  may  be  added  to  those  given  above  are,  Bathurst  v. 
Burden,  2  Bro.  C.  C.  84  (damaging  fish-ponds);  Pratt  v.  Brett,  2 
Madd.  62  (sowing  mustard  seed,  and  other  waste  of  common  char- 
acter); West  Ham  etc.  Board  v.  East  London  Water  Works  Co., 
69  L.  J.  Ch.  257,  [1900]  1  Ch.  624,  84  L.  T.,  N.  S.,  85,  48  Week. 
Eep.   284    (covering   land   with   rubbish);    Clagon   v,   Veasey,   7   Ired, 


5  483  EQUITABLE  REMEDIES.  804 

tion,  however,  that  American  courts  frequently  refuse 
to  enjoin  acts  which  the  English  courts  would  enjoin 
almost  as  a  matter  of  course,  not  because  the  jurisdic- 
tion of  equity  is  narrower  in  scope  in  this  country,  but 
because  the  substantive  law  of  waste  is  different  and 
more  liberal.  Courts  of  equity  in  denying  injunctions 
have  often  had  occasion  to  point  out  the  differences. 
As  said  by  the  court  in  one  case :  "The  law  of  waste,  as 
understood  in  England,  would  have  made  it  impossible 
for  tenants  to  cultivate  the  wild  lands  of  this  country"  ;^® 
and  in  another:  "To  apply  the  ancient  doctrines  of 
waste  to  modern  tenancies,  even  for  short  terms,  would 
in  some  of  our  cities  and  villages  put  an  entire  stop  to 
the  progress  of  improvement,  and  would  deprive  the 
tenant  of  those  benefits  which  both  parties  contemplated 
at  the  time  of  the  demise,  without  any  possible  advan- 
tage to  the  owner  of  the  reversion. "i'^  In  the  spirit  of 
this  language,  knowing  that  conditions  in  this  country 
often  made  acts  really  beneficial  which,  according  to 
the  strict  definition  of  waste,  fell  easily  within  its  scope, 
American  judges  have  refused  to  enjoin  the  cutting  of 
timber    according    to    the    rules  of  good    husbandry,'* 

Eq.  173  (removal  of  a  slave  to  parts  unknown);  Lehman  v.  Logan, 
7  Ired,  Eq.  296  (same  as  preceding  case);  Du  Pre  v.  Williams,  5 
Jonea  Eq.  96  (same  as  preceding  case).  Additional  cases  of  the 
same  kinds  as  given  above  are  collected  in  1  Ames,  Cases  in  Eq. 
Juris.,   461,   note. 

16  Crowe  v.  Wilson,  65  Md.  479,  57  Am.  Rep.  343,  5  Atl.  427.  See, 
also,  4  Pom.  Eq.  Jur.,  §  1348,  note  1. 

17  Winship  v.  Pitts,  3  Paige,  259. 

18  Board  of  Supervisors  of  Warren  Co.  v.  Gang,  80  Miss.  76,  31 
South.  539;  McLeod  v.  Dial,  63  Ark.  10,  37  S.  W.  306;  McCullough  v. 
Irvine's  Exrs.,  13  Pa.  St.  438;  Lynn's  Appeal,  31  Pa.  St.  44,  72  Am. 
Dec,  721;  Morris  v.  Knight,  14  Pa.  Super.  Ct.  324;  Kidd  v.  Dennison, 

6  Barb.  10;  Alexander  v.  Fisher,  7  Ala.  514;  Shine  v.  Wilcox,  1  Dev. 
&  B.  Eq.  631;  Crowley  v.  Timberlake,  2  Ired.  Eq.  460.  See  Disher 
V.  Disher,  45  Neb.  100,  63  N.  W.  368. 


605  INJUNCTION    AGAINST    WASTE.  §  484 

or  the  erection  of  new^^  or  the  destruction  of  old  build- 
ings.^** 

§  484.  Waste  must  he  Threatened. — The  purpose  of  this 
jurisdiction  is,  to  prevent  future  acts  of  waste,  and 
also,  though  rarely,  to  restore  things  to  their  former 
condition.^^  Hence,  in  general,  an  injunction  will  not 
be  granted  after  the  acts  complained  of  are  finished,^* 
nor  to  prevent  the  removal  of  the  personalty  produced 
by  acts  of  waste,  such  as  timber  cut.^^  In  determining 
the  propriety  of  granting  its  preventive  remedy,  equity 
requires  a  plaintiff  to  show  a  need  of  its  protection. 
He  must  establish  that  the  defendant  has  been  guilty 
of  acts  or  words  which  justify  a  reasonable  apprehen- 
sion on  his  part  of  future  waste.  "The  court  never 
grants  injunctions  on  the  principle  that  they  will  do 
no  harm  to  the  defendant,  if  he  does  not  intend  to  com- 
mit the  act  in  question — but  if  there  be  no  ground  for 
the  injunction,  it  will  not  support  iV^^  And  a  plain- 
tiff who  does  not  show  a  sufficient  case  of  threatened 
waste  will  have  his  bill  dismissed  with  costs.^^  This 
is  not  saying  that  the  courts  make  a  plaintiff's  way 
hard  or  impose  on  him  a  heavy  burden.  For  a  single 
act  of  waste  is  considered  a  sufficient  threat  of  further 
acts  of  the  same  kind  f^  or  mere  uttered  threats,  or  acta 

19  Winship    v.   Pitts,   3    Paige,   259. 

20  Crowe  v.  Wilson,  65  Md.  479,  57  Am.  Eep.  343,  5  Atl.  427;  Melma 
V.  Pabst  Brewing  Co.,  104  Wis.  7,  46  L.  E.  A.  478,  79  N.  W,  738. 

21  See  infra,  §  491. 

22  Owen   V.   Pord,   49    Mo.    436;    Southard   v.   Morris   Canal    Co.,   1 
N.  J.  Eq.  519. 

23  Bishop  of  London  v.  Webb,  1  P.  Wms.  527;  Watson  v.  Hunter, 
5  Johns,  Ch.  169,  9  Am.  Dec.  295. 

24  Lord  Elden  in  Coffin  v.  Coffin,  Jacob,  70. 

25  Clement  v.  Wheeler,  25  N.  H.  361. 

26  Barry  v.  Barry,  1  Jacob   &  W.  651;   Sarles  v.  Sarles,  3   Sandf. 
Ch.  601. 


I  485  EQUITABLE  REMEDIES.  806 

which,  though  not  themselves  waste,  yet  signify  an 
intention  to  commit  waste,  will  support  an  injunction.-'' 
And  it  is  no  defense  to  a  bill  for  an  injunction  for  a 
defendant  who  has  been  guilty  of  waste  to  say  that  he 
does  not  intend  to  do  so  again,^*  or  that  he  has  com- 
mitted no  waste  since  the  filing  of  the  bill,^^  or  for  one 
who  has  threatened  waste  to  say  that  he  does  not  mean 
to  carry  out  his  threat.^*^  Such  declarations  do  not, 
under  the  circumstances,  overturn  the  case  which  the 
plaintiff  has  made,  and  the  injunction  will  issue  in  spite 
of  them. 

§  485.  Legal  Waste  Which  is  not  Subject  to  Injunction. 
In  view  of  the  extensive  jurisdiction  of  equity  over 
waste  it  is  sometimes  said  that,  in  general,  an  injunction 
may  be  obtained  to  stay  waste  in  all  cases  where  an 
action  of  waste  would  lie  at  common  law.^^  The 
qualifications  to  this  statement  of  the  scope  of  equity's 
jurisdiction  over  waste  should  be  made  at  this  point. 
They  are  three  in  number:  First,  equity  will  not  en- 
join permissive  waste,^^  The  reason  for  this  holding  is 
not  made  clear  in  the  cases.  In  one  of  them^^  counsel 
argued,  that  to  grant  such  injunctions  "would  tend  to 

27  Jackson  v.  Cator,  5  Ves.  688;  CofBn  v.  Coffin,  Jacob,  70;  London 
V.  Warfield,  5  J.  J.  Marsh.  (Ky.)  196;  Sheridan  v.  McMiillen,  12 
Or.  150,  6  Pac.  497;  Duvall  v.  Waters,  1  Bland  Ch.  (Md.)  569,  18 
Am.  Dee.  350,  357;  Palmer  v.  Young,  108  111.  App.  252,  citing  Pom, 
Eq.  Jur.,   §§   237,  1348. 

28  Packington  v.  Packington,  Dick.  101;  Sowerby  v.  Fryer,  L.  R. 
8  Eq.  417. 

29  Attorney-General  v.  Burrows,  Dick.  128. 

30  Packington   v.   Packington,   supra. 

31  Duvall  V.  Waters,  1  Bland  Ch.  (Md.)  569,  18  Am.  Dec.  350,  357. 

32  Castlemain  v.  Craven,  22  Vin.  Abr.  523;  Powys  v,  Blagrave,  4 
De  Gex,  M.  &  G.  448,  458;  Wood  v.  Gaynon,  Amb.  395;  Cannon  v. 
Barry,  59  Miss.  289,  303.  But  see  Bathurst  v.  Burden,  2  Bro.  C.  C. 
64;  Caldwall  v.  Baylis,  2  Mer.  408;  Williams  v.  Peabody,  8  Hun, 
271;  2  Story,  Eq.  Jur.,  §  917. 

33  Wood  V.  Gaynon,  supra. 


807  INJUNCTION    AGAINST    WASTE.  §  486 

harass  tenants  for  life,  and  jointresses,  and  suits  of  this 
kind  would  be  attended  with  great  expense  in  deposi- 
tions about  the  repairs."  A  more  satisfactory  reason 
would  seem  to  be  the  same  one  which  leads  to  the  re- 
fusal to  decree  specific  performance  of  contracts  to 
make  repairs,  viz.,  the  practical  difflcultv  of  giving  ade- 
quate supervision  to  the  performance  of  the  decree. 
Second,  equity  will  not  enjoin  ameliorating  waste,  which 
is  any  act  that  though  technically  waste,  yet  in  fact  im- 
proves the  inheritance.^^  The  reason  for  refusing  the 
injunction  in  such  cases  is  obvious.  And,  third,  equity 
will  not  enjoin  trivial  acts  of  waste,  but  will  require 
that  substantial  damage  be  shown.^^ 

§  486.  Must  the  Injury  be  Irreparable? — The  last  pre-  , 
ceding  statement  immediately  suggests  the  inquiry 
whether  a  showing  of  even  substantial  damage  is 
enough  to  justify  an  injunction  against  waste.  Does 
not  the  usual  rule  that  a  legal  wrong  will  be  enjoined 
only  when  the  legal  remedy  is  inadequate  ^pplj  here, 
and  must  not  the  injury  therefore  be  irreparable?  It 
would  seem  that  in  assuming  jurisdiction  over  waste 
the  courts  have  not  always  had  this  fundamental  in- 
quiry in  mind;  or  else  have  considered  it  not  the  test  of 
jurisdiction.  Hence  injunctions  have  been  granted 
when,  tested  by  the  above  rule,  it  would  seem  they 
should  have  been  denied,  as  when  the  waste  consisted 
in  carrying  away  personal  property  not  possessing  any 
peculiar  qualities  or  special  value.^^     And  in  such  cases 

34  Doherty  v.  Allman,  L.  E.  3  App.  Cas.  709;  Meux  v.  Cobley,  [1892] 
2  Ch.  253;  Mollineux  v.  Powell,  3  P.  Wms.  268n  (F). 

35  Mollineux  v.  Powell,  3  P.  "Wms.  268ii  (F);  Barry  v.  Barry,  1 
Jacob  &  W.  651;  Doherty  v.  Allman,  L.  E.  3  App.  Cas.  709;  Birch- 
Wolfe  V.  Birch,  L.  E.  9  Eq.  683. 

36  Pulteney    v.    Shelton,   5    Ves.    259,   note;    Onslow    v. 16 

Ves.  173;   Georges  Creek  etc.  Co.  v.  Detmold,  1  Md.  Ch.  371. 


§  487  EQUITABLE  EEMEDIES.  808 

some  American  courts  have  taken  the  contrary  view.^'^ 
If  prohibited  by  a  covenant  in  a  lease,  it  seems  that  the 
fair  weight  of  authority  holds  in  favor  of  granting  the 
injunction  against  any  waste,  whether  causing  irrepar- 
able injury  or  not.^^ 

§  487.  Plaintiff's  Title. — A  groat  deal  has  always  been 
said  in  the  cases  about  the  title  which  a  plaintiff  who 
is  seeking  an  injunction  against  waste  must  show,  and 
of  the  effect  on  plaintiff's  right  to  the  injunction  of  a 
dispute  as  to  title  between  him  and  the  defendant.  It 
is  to  be  noted  that  there  are  here  two  distinct  questions, 
which  have  not  always  been  kept  clearly  apart.  The 
first  is  as  to  the  showing  of  title  which  a  plainti-i  must 
make  in  his  bill  to  entitle  him  to  relief,  assuming  his 
allegations  of  title  to  be  admitted ;  it  is  the  question  of 
title  which  is  raised  by  a  demurrer  to  the  bill  as  being 
insufficient  in  the  allegations  of  title.  The  second  is 
raised  when  the  plaintiff's  allegations  of  title,  sufficient 
in  themselves,  are  disputed  by  the  defendant.  In  an- 
swer to  the  first  question  it  can  be  said  that  the  courts 

37  Gregory  v.  Hay,  3  Cal.  332;  Greathouse  v.  Greathouse,  46  W. 
Va.  21,  32  S.  E.  994.  The  question  does  not  seem  to  Lave  arisen 
often,  doubtless  because  of  the  fact  (already  suggested)  that  waste 
is  generally,  from  its  very  nature,  a  serious  injury  to  realty,  and 
hence  obviously  within  the  class  of  acts  called  irreparable.  It  is 
interesting  to  note  in  this  connection  and  in  view  of  the  difference  of 
holdings  of  modern  courts  on  the  point  in  trespass  cases,  that  so  long 
ago  as  1792  Lord  Thurlow,  in  Smallman  v.  Onions,  3  Brown  Ch.  621, 
held  the  insolvency  of  the  defendant  a  sufficient  ground  for  enjoin- 
ing waste. 

38  Tipping  V.  Eckersley,  2  Kay  &  J.  264;  Steward  v.  Winters,  4 
Sandf.  Ch.  587;  Frank  &  Co.  v.  Bounneman,  8  W.  Va,  462;  Barret 
V.  Blagrave,  5  Ves.  555;  and  see  note  to  Maddox  v.  White,  4  Md. 
72,  in  59  Am.  Dec.  67,  70.  The  ground  of  the  jurisdiction  in  such 
cases  is  probably  to  avoid  multiplicity  of  suits  for  a  continuing 
breach  of  covenant.  This  reason  may  reconcile  Gregory  v.  Hay,  3 
Cal.  332,  in  which  case  an  injunction  against  violation  of  a  lease 
was  refused. 


B09  INJUNCTION    AGAINST    WASTE.  §  487 

require  the  plaintiff  to  set  out  his  chain  of  title  fullv 
and  to  support  it  by  positive  evidence.^^  Hence  Lord 
Thurlow  in  an  early  case  refused  to  grant  a  tem- 
porary injunction  because  the  plaintiff  made  affidavit 
generally  that  he  was  entitled  to  a  fee  simple  and  did 
not  set  out  a  particular  title.  And  shortly  afterwards 
Lord  Eldon  refused  a  motion  for  injunction  because, 
though  the  plaintiff  alleged  his  title  sufficiently,  yet  his 
affidavits  supported  it  only  as  a  matter  of  belief  on 
plaintiff's  part,  the  court  saying  there  ought  to  be  "posi- 
tive evidence  of  an  actual  title."  The  reason  for  this 
rule  is  stated  in  a  recent  American  case  as  follows: 
"This  rule  is  a  simple  recognition  of  the  general  x^'in- 
ciple  that  one  is  not  entitled  to  invoke  the  extraordinary 
poAvers  of  a  court  of  equity  unless  he  can  establish  in 
a  manner  satisfactory  to  the  law  the  fact  that  he  will^*^ 
suffer  an  irreparable  injury  in  his  estate.  Unless  the 
estate  be  his,  he  can  suffer  no  injury,  and  unless  the 
title  be  in  him  there  is  no  estate."^^  In  other  words, 
for  a  plaintiff  to  obtain  standing  in  a  court  of  equity 
to  enjoin  waste,  he  must  make  a  prima  facie  showing 
of  title  in  himself.  It  is  sometimes  said  that  a  plain- 
tiff must  show  a  "clear  title"  upon  "unquestionable  evi- 

39  Whitelegg  v.  Whitelegg,  1  Bro.  C.  C.  57,  by  Lord  Thurlow;  Davis 
V.  Leo,  6  Ves.  784,  by  Lord  Eldon;  Wearin  v.  Munson,  62  Iowa,  466, 
17  N.  W.  746;  Denning  v.  Corwin,  4  Wend.  208.  In  the  last  case 
cited  a  part  of  the  reason  for  refusing  a  temporary  injunction  was 
that  it  was  consistent  with  plaintiff's  allegation  of  title  that  the 
defendants  were  tenants  in  common  with  him  and  therefore  not 
wrong-doers.     See  also.  Field  v,  Jackson,  Dick.  599. 

40  The  word  "may,"  it  is  submitted,  would  be  a  better  one  here. 

41  Flannery  v.  Hightower,  97  Ga.  592,  25  S.  E.  371.  It  should  be 
said  that  the  language  quoted  was  used  in  support  of  the  holding 
that  a  mere  dispute  as  to  title  between  plaintiff  and  defendant  per 
ee  precludes  the  granting  of  a  temporary  injunction — a  proposition 
which,  it  will  be  shown,  is  not  supported  by  the  sound  weight  of 
authority. 


S  488  EQUITABLE  REMEDIES.  810 

dcnce"*^ — a  requirement  which  seems  more  strirt  tlian 
is  demanded  either  on  principle  or  on  authority,  and 
the  application  of  which  would  prevent  the  granting  of 
an  injunction  in  any  case  whenever  there  is  a  substan- 
tial dispute  as  to  title  between  plaintiff  and  defendant 

§  488.  Title  in  Dispute.— And  this  is  the  state  of  facts 
which  raises  the  second  question  above  mentioned.  In 
the  definition  of  waste  at  the  beginning  of  this  chapter 
it  is  pointed  out  that  the  material  distinction  between 
waste  and  trespass  in  equity  lies  in  the  fact  that  waste 
is  committed  by  one  rightfully  in  possession,  trespass, 
by  one  wrongfully  in  possession  or  not  in  possession  at 
all.  This  is  a  purely  technical  distinction,  and  hence 
identical  acts  will  in  one  case  be  waste,  in  another, 
trespass.  Influenced  by  this  identity  of  substance,  it 
has  been  an  inveterate  habit  of  equity  judges  and  law- 
yers since  the  time  of  Lord  Eldon^^  to  speak  of  acts  as 
"waste"  when  with  strict  observance  of  the  technical 
distinction  they  would  have  called  them  trespass.  It 
is  clear  that  in  cases  of  waste,  strictly,  since  it  involves 
privity  of  title  and  rightful  possession  of  defendant,  dis- 
putes as  to  title  will  not  often  be  present.  And  a  scru- 
tiny of  the  cases  shows  this  to  be  true,  most  of  those  in 
which  there  have  been  decision  or  dictum  as  to  the  effect 
of  a  dispute  concerning  title  on  the  granting  of  an  in- 
junction to  stay  "waste"  being  really  cases  of  trespass. 
A  fuller  discussion  of  the  subject  is  therefore  reserved 
for  the  chapter  on  Trespass.  It  may  be  sufficient  to 
point  out  here  that,  if  there  is  really  a  substantial  dis- 
pute as  to  title,  the  injunction  prayed,  and  the  only 

42  See  Flannery  v.  Hightower,  supra,  and  cases  collected  in  notes 
to  Whitelegg  v.  Whitelegg,  supra,  and  Davis  v.  Leo,  supra;  High  on 
Injunctions,  §  651. 

43  Pillsworth   V.  Hopton,  6  Ves.  51. 


811  INJUNCTION    AGAINST    WASTE.  8  489 

one  proper  to  grant,  generally,  is  a  temporary  injunc- 
tion pending  the  settlement  of  the  dispute;  that  a 
stronger  case  of  apprehended  injury  must  be  shown  to 
entitle  a  plaintiff  to  a  temporary  than  to  a  permanent 
injunction,  because  of  the  injury  which  the  injunction 
will  have  done  the  defendant  if  he  eventually  prove  title 
in  himself  ;^^  and,  finally,  that  if  the  above  conditions 
are  complied  with,  though  the  authorities  are  not  uni- 
form, the  injunction  will  issue.^^ 

§  489.  Equitable  Waste — Definition. — Equitable  waste 
arose  out  of  the  different  effect  given  in  law  and  in 
equity  to  the  phrase  "without  impeachment  of  waste," 
or  equivalent  words,  in  a  lease,  or  the  settlement  or 
devise  creating  an  estate  less  than  a  fee.  Courts  of  law 
held  that  such  a  phrase  gave  to  the  tenant  the  same  ab- 
solute power  of  changing  or  destroying  the  inheritance 
that  a  tenant  in  fee  would  have.  Courts  of  equity  early 
"set  up  a  superior  equity"^®  and  began  to  restrain  acta 

44  See  Lusting  v.  Conn,  1  Ir.  Ch.  273. 

45  Case  cited  in  Mogg  v,  Mogg,  Dick.  670;  Duvall  v.  Waters,  1 
Bland  (Md.),  569,  18  Am.  Dec.  350;  Woods  v.  Riley,  72  Miss.  73, 
IS  South.  384;  Baker  v.  National  Biscuit  Co.,  96  111.  App.  228; 
Meadow  Valley  Mining  Co.  v.  Dodds,  6  Nev.  261;  Littlejohn  v.  Leffing- 
well,  40  App.  Div.  13,  57  N,  Y.  Supp.  839;  Dooley  v.  Stringham,  4 
Utah,  107,  7  Fac.  405  (a  case  of  real  waste,  dispute  being  as  to  ex- 
tent of  plaintiff's  estate),  citing  2  Pom.  Eq.  Jur.,  §§  917,  919;  4  Pom. 
Eq.  Jur.,  1348.  Contra,  Nevitt  v.  Gillespie,  1  How.  (Miss.)  108, 
26  Am.  Dec.  696;  Poindexter  v.  Henderson,  1  Miss.  (Walk.)  176,  12 
Am.  Dec.  550;  Lewis  v.  Christian,  40  Ga.  187;  Flannery  v.  High- 
tower,  97  Ga.  592,  25  S,  E.  371;  Blackwood  v.  Van  Vleet,  11  Mich. 
252.  See  further  cases  cited  infra  under  same  subject  in  chapter 
on  Trespass.  It  should  be  added  that  the  holding  of  an  early  case 
(Lathropp  v.  Marsh,  5  Ves,  259)  that  a  landlord  cannot  enjoin  waste 
by  a  tenant  unless  he  has  brought  ejectment  is  discredited:  Note 
2  to  the  case,  5  Ves.  261;  Kane  v,  Vanderburgh,  1  Johns.  Ch.  11; 
Eden  on  Injunctions,  237,  note   (b). 

46  Per  Lord  Hardwicke,  in  Eolt  v.  Lord  Somerville,  2  Eq.  Cas. 
Abr.  759.  See,  also,  opinion  of  Lord  Turner  in  Micklethwait  v. 
Micklethwait,  1  De  Gex  &  J.  504,  524. 


§  41)0  EQUITABLE  EEMEDIES.  812 

by  the  tenant  that  were  really  destructive,  and  after 
more  or  less  diversity  of  opinion^'  finally  adopted  as 
the  equitable  waste  which  w^ould  not  be  allowed  even 
to  a  tenant  without  impeachment  of  waste,  "that  which 
a  prudent  man  would  not  do  in  the  management  of  his 
own  property."**  This  definition  makes  the  phrase 
"without  impeachment  of  waste"  nothing  more  than  a 
corrective  of  the  close  restrictions  which  the  common 
law  put  on  the  rights  of  a  tenant  who  held  impeachable 
of  waste,  and  is  strikingly  similar  to  the  definitions  of 
legal  waste  often  given  by  American  courts.** 

§  490.  Extent  of  Jurisdiction — The  cases  of  equitable 
waste  are  almost,  if  not  exclusively,  confined  to  destruc- 
tion or  removal  of  buildings,^"  carrying  away  of  the 
soil,^^     cutting    ornamental     or     sheltering     trees     or 

47  See  opinion  of  Lord  Nottingham  in  Skelton  v,  Skelton,  2  Swanst. 
170;  of  Lord  Parker  in  Bishop  of  London  v.  Web,  1  P.  Wms.  527; 
of  Lord  Hardwicke  in  Aston  v.  Aston,  1  Ves.  Sr.  264;  and  of  Lord 
Eldon  in  Smythe  v.  Smythe,  2  Swanst.  251. 

48  Per  Lord  Campbell  in  Turner  v,  Wright,  3  De  Gex,  F.  &  J. 
234,  243.  For  substantially  similar  descriptions  of  equitable  waste, 
see  Baker  v.  Sebright,  L.  E.  13  Ch.  D.  179,  186;  Stevens  v.  Rose, 
69  Mich.  259,  37  N.  W.  205,  210;  Buncombe  v.  Felt,  81  Mich.  332,  45 
N.  W.  1004,  1006.  In  this  last  case  the  defendants  had  conveyed 
land,  taking  back  a  lease  for  life  which  contained  the  following 
clause:  "And  it  is  expressly  understood  that  the  second  parties 
ars  to  have  as  full  and  complete  control  of  said  premises  ....  as 
though  such  conveyance  had  not  been  made."  Yet  they  were  en- 
joined from  stripping  the  land  of  timber.  Lord  Campbell  also  pointed 
out  in  Turner  v.  Wright,  supra,  that  no  sensible  distinction  in  waste 
can  be  based  upon  the  malice  of  the  defendant,  though  it  is  often 
said  that  equity  will  enjoin  a  tenant  from  committing  malicious 
waste. 

49  See  cases  cited,  a7ite,  §  483. 

50  Vane  v.  Barnard,  2  Vern,  738;  Bolt  v.  Somerville,  2  Eq.  Cas. 
Abr.  759;  Anonymous,  Mos.  237;  Williams  v.  Day,  2  Cas.  in  Ch.  32; 
Stevens  v.  Rose,  69  Mich.  259,  37  N.  W.  205  (action  on  the  case 
for  damages  under  statute  [How.  St.  Mich.,  c.  271,  §  1],  but  decided 
according  to   principles  of   equitable   waste). 

61   Bishop  of  London  v.  Web,  1  P.  Wms.  527. 


813  INJUNCTION    AGAINST    WASTE.  §  490 

shrubs,^^  cutting  saplings,'^^  and  stripping  the  land  of 
timber.^^  Of  these  various  classes  the  first  two  need 
no  special  mention,  the  cases  in  them  being  very  few 
and  founded  on  obvious  reasons.  "Ornamental"  as  ap- 
plied to  trees  and  shrubs  in  matters  of  equitable  waste 
is  a  technical  term.  "The  question  is  not,  whether  the 
timber  is  or  is  not  ornamental;  but  the  fact  to  be  de- 
termined is  that  it  was  planted  for  ornament ;  or,  if  not 
originally  planted  for  ornament,  was,  as  we  express  it, 
left  standing  for  ornament  by  some  person  having  the 
absolute  power  of  disposition."^^  It  is  also  held 
that  cutting  trees  planted  to  exclude  certain  objects 
from  view  will  be  enjoined,  on  the  same  principle;^® 
and  that  the  owner  of  the  fee  may  change  ornamental 
timber  into  non-ornamental  timber.^^  The  principle 
would,  therefore,  seem  to  be,  that  whatever  trees  or 
shrubbery  the  last  owner  of  the  fee  manifests  an  inten- 
tion to  have  left  standing,  is  within  the  rule  as  to  equi- 
table waste.  The  cutting  of  saplings  is  enjoined  on 
the  ground  that  as  they  are  not  fit  for  timber  it  is  de- 
spoiling the  estate  as  a  prudent  owner  would  not  do.^^ 

52  Packington's  Case,  3  Atk.  215;  Coffin  v.  Coffin,  Jacob,  70;  V^omb- 
well  V.  Belasyse,  6  Ves.  (2d  ed.)  110a,  note;  Morris  v.  Morris,  15 
Sim.  505  (injunction  granted,  though  house  about  which  the  trees 
had  formerly  stood  had  been  removed;  cf.  Micklethwait  v.  Mickle- 
thwait,  1  De  Gex  &  J.  504);  Wellesley  v.  Wellesley,  6  Sim.  497;  Ste- 
vens V.  Kose,  69  Mich.  2'59,  37  N.  W.  205.  And  see  other  cases  col- 
lected in  1  Ames,  Cases  in  Eq.  Juris.,  469,  note  2. 

53  Aston  V.  Aston,  1  Ves.  Sr.  264;  O'Brien  v.  O'Brien,  Amb.  107; 
Chamberlayn  v.  Dummer,  1  Bro.  C.  C.  166;  Strathmore  v.  Bowes, 
2  Bro.   C.   C.  88;   Allard  v.  Jones,  15  Ves.   605. 

54  Bishop  of  Winchester's  Case,  1  Kolle  Abr.  380  (J,  3);  Dun- 
combe  v.  Felt,  81  Mich.  332,  45  N.  W.  1004, 

55  Per  Lord  Eldon  in  Wombwell  v.  Belasyse,  6  Ves.  (2d  ed.)  110a, 
note.  See,  also,  Downshire  v.  Sandys,  6  Ves.  107;  Barges  v.  Lamb, 
16   Ves.    174,    185. 

66  Day  V.  Merry,  16  Ves.  375, 

67  AHcklethwait   v.  Micklethwait,  1  De   Gex  &  J.  504. 

58  This  was  admitted  to  be  equitable  waste  by  Lord   Eldon,  who 


S  491  EQUITABLE  REMEDIES.  814 

Stripping  the  land  of  timber  is  likewise  enjoined  be- 
cause fair  husbandry  forbids  it.^^ 

§  491.  Relief  Against  Waste  in  Equity. — The  only  re- 
lief against  legal  waste  for  which  one  is  entitled  to  come 
into  equity  is  an  injunction.  This  injunction  is  al- 
most always  prohibitive,  but  in  a  proper  case  it  may  be 
mandatory  for  the  restoration  of  the  thing  destroyed.*'* 
But  though  one  can  secure  standing  in  equity  with  ref- 
erence to  legal  waste  only  because  of  his  right  to  an  in- 
junction, he  is  also  in  addition  given  an  accounting  for 
the  waste  already  done.  This  further  relief  is  given  on 
the  broad  general  principle  of  equity  that  when  once  it 
has  acquired  jurisdiction  of  a  case  it  will  give  complete 
relief,  even  though  part  of  such  relief  be  purely  legal 
in  its  nature,  rather  than  to  compel  a  plaintiff  to  bring 
another  suit  at  law  in  order  to  obtain  the  full  remedy 
to  which  he  is  entitled.^^  This  accounting  is  given  only 
as  an  incident  to  the  injunction,  which  is  the  basis  of 
plaintiff's  right  in  equity,  and  therefore  it  cannot  be 
prayed  alone;  and  if  the  injunction  is  refused  the  right 
to  the  accounting  falls  with  it.®^  The  proceeds  of  such 
waste  to  go  to  the  remainder-man  in  fee,  though  there  be 
intermediate  remainder-men  for  life  or  years,  following 

was   inclined  to   restrict   cases   of   equitable   waste   more   than   later 
judges:   Smythe  v,   Smythe,  2   Swanst.   251. 

59  Duncombe  v.  Felt,  81  Mich.  332,  45  N.  W.   1004. 

60  Vane  v.  Lord  Barnard,  2  Vern.  738,  Free.  Ch.  454;  Eolt  v.  Lord 
Somerville,  2  Eq,  Cas.  Abr.  759;  Bass  v.  Metropolitan  etc.  Co.,  82 
Fed.  857,  27  C.  C.  A.  147,  39  L.  E.  A.  711;  Klie  v.  Von  Broock,  56 
N.  J.  Eq.  18,  37  Atl.  469. 

61  Jesus  College  v.  Bloom,  Amb.  54,  3  Atk.  262;  Castlemain  v. 
Craven,  22  Vin.  Abr.  523;  Jungerman  v.  Vovee,  19  Cal.  354;  William- 
son V.  Jones,  43  W.  Va.  562,  64  Am.  St,  Eep.  891,  27  S.  E.  411,  38 
L.  E.  A.  694. 

62  Jesus  College  v.  Bloom,  Amb.  54,  3  Atk.  262;  Smith  v.  Cooke, 
3  Atk.  378;  Watson  v.  Hunter,  5  Johns.  Ch.  169,  9  Am.  Dec,  295; 
Lippincott  V.  Barton,  42  N.  J.  Eq,  272,  10  Atl.  884. 


815  INJUNCTION    AGAINST    WASTE.  §  492 

the  legal  rule  that  the  person  in  whom  is  the  fee  has 
title  to,  and  may  bring  trover  for,  the  personalty  which 
results  from  acts  of  waste.®^  The  accounting  for  equi- 
table waste  differs  from  that  given  for  legal  waste  in 
one  particular.  Since  equitable  waste  is  wholly  a 
creation  of  the  courts  of  equity,  there  is  no  legal  rem- 
edy for  it  whether  it  is  past  or  future.  Hence,  one  may 
file  his  bill  for  an  accounting  for  equitable  waste  with- 
out praying,  or  being  entitled  to,  an  injunction.®*  The 
accounting  which  equity  gives  for  waste,  both  legal 
and  equitable,  differs  from  the  damages  a  court  of  law 
gives  for  the  former  iji  that  it  is  estimated  according  to 
the  profits  which  the  wrong-doer  has  received,  and  not 
according  to  the  damage  done  to  the  estate  nor  the 
value  of  the  personalty  produced  by  the  acts  of  waste  f^ 
and  no  allowance  is  made  for  the  defendant's  labor  or 
expense.  ®® 

§  492.  Parties  for  and  Against  Whom  Injunction  will  Is- 
sue.— It  remains  to  note  the  estates  of  parties  for  and 
against  whom  injunctions  to  prevent  waste  will  issue. 
No  citations  will  be  needed  to  show  that  a  reversioner  or 
remainder-man  in  fee  may  enjoin  waste.  So  may  a  con- 
tingent remainder-man,^^  a  trustee  to  preserve  contiu- 

63  Whitfield  V.  Bewit,  2  P.  Wms.  240;  Eolt  v.  Somerville,  2  Eq. 
Cas.  Abr.  759;  Castlemain  v.  Craven,  22  Vin.  Abr.  523;  Gent  V. 
Harrison,  Johns.  517;  Birchwolfe  v.  Birch,  L.  E.  9  Eq.  683. 

64  Whitfield  V.  Bewit,  2  P.  Wms.  240;  Lansdowne  v.  Lansdowne, 
1  Madd.  116;  Lushington  v.  Boldero,  15  Beav.  1;  Gent  v.  Harrison, 
Johns.  517. 

65  Lee  V.  Alton,  1  Ves.  78,  82;  Morris  v.  Morris,  2  De  Gex  &  J. 
323;  Tate  v.  Field,  57  N.  J.  Eq.  53,  40  Atl.  206. 

66  Sweeney  v.  Hanley,  126  Fed.  97. 

67  Brashear  v.  Macey,  3  J.  J.  Marsh.  89;  University  v.  Tucker 
31  W.  Va.  621,  8  S.  E.  410;  Cannon  v.  Barry,  59  Miss.  289;  Peterson 
V.  Ferrell,  127  N.  G.  169,  37  S.  E.  189;  Kallock  v.  Webb,  113  Ga. 
762,  39  S.  E.  339. 


§  492  EQUITABLE  KEMEDIES.  816 

gent  remainders,^^  or  a  tenant  for  life  whether  with  or 
without  impeachment  of  waste.®^  A  mortgagee  or  a 
purchaser  at  a  foreclosure  sale  may  also  enjoin  waste 
by  a  mortgagor  in  possession  who  threatens  to  do  acts 
which  impair  his  security.^**  The  injunction  will  not 
issue,  however,  unless  the  suflflciency  of  the  security  is 
threatenedJ^  But  in  determining  this  point,  the  courts 
aim  to  protect  the  mortgaged  property  up  to  "the  value 
which  was  the  basis  of  the  contract  between  the  par- 
tics  at  the  time  it  was  entered  into."^^  Equity  juris- 
diction over  mortgaged  property  rests  on  a  broader 
ground  than  in  most  cases  of  waste,  since  courts  of 
equity  have  very  fully  taken  the  entire  subject  of  mort- 
gages into  their  hands.  Hence  mortgages  of  personal 
property  are  given  the  same  protection  as  those  of 
realtyJ^  On  the  same  principle  of  protecting  a  secur- 
es Garth  v.  Cotton,  1  Ves.  524,  556,  Dick.  183,  1  Lead.  Cas.  Eq. 
(4th  Am.  ed.)    955;  Perrot  v.  Perrot,  3  Atk.  94. 

09  Perrot  v.  Perrot,  3  Atk,  94;  Eolt  v.  Somerville,  2  Eq.  Cas.  Abr. 
759;  Davis  v.  Leo,  6  Ves.  784;  Halstead  v.  Coen,  31  Ind.  App.  302,  67 
N.  E.  757. 

70  Parsons  v.  Hughes,  12  Md.  1;  Bunker  v.  Locke,  15  Wis.  635; 
Humphreys  v.  Harrison,  1  Jacob  &  W.  581;  Usborne  v.  Usborne, 
Dick.  75;  Brady  v.  Waldron,  2  Johns.  Ch.  148;  Phoenix  v.  Clark, 
6  N.  J.  Eq.  447;  Taylor  v.  Collins,  51  Wis.  123,  8  N.  W.  22;  Moses  v, 
Johnson,  88  Ala.  517,  16  Am.  St.  Eep.  58,  7  South.  146;  Eobinson  v. 
Kussell,  24  Cal.  467;  Mitchell  v.  Amador  etc.  Co.,  75  Cal.  464,  17 
Pac.  246;  Lavenson  v.  Standard  Soap  Co.,  80  Cal.  245,  13  Am.  St. 
Eep.  147,  22  Pac.  184;  Minneapolis  Trust  Co.  v.  Veshulst,  74  111. 
App.  350;  Life  Ins.  Co.  v.  Bigler,  79  N.  Y.  568;  Beaver  Lumber  Co. 
V.  Eccles,  43  Or.  400,  99  Am.  St.  Eep.  759,  73  Pac.  201;  Terry  v. 
Eobbins,  122  Fed.   725. 

Ji  Fairbank  v.  Cudworth,  33  Wis.  358;  Smith  v.  Frio  County  (Tex. 
Civ.  App.),  50  S.  W.  958;  Moriarty  v.  Ashworth,  43  Minn.  1,  19  Am. 
St.  Eep.  203,  44  N.  W.  531;  Beaver  etc.  Co.  v.  Eccles,  43  Or.  400, 
99  Am.  St.  Eep.  759,  73  Pac.  201;  Eobinson  v.  Eussell,  24  Cal.  467. 

72  King  V.  Smith,  2  Hare,  239,  243;  Moriarty  v.  Ashworth,  43 
Minn.  1,  19  Am.  St.  Eep.  203,  44  N.  W.  531. 

73  McGormick  v.  Hartley,  107  Ind.  248,  6  N.  E,  357;  Brown  v. 
Stewart,  1  Md.  Ch.  Dec.  87;  Clagett  v.  Salmon,  5  Gill  &  J.  314;  Bagnail 


817  INJUNCTION    AGAINST    WASTE.  §  492 

itv,  a  vendor  of  land  who  retains  title  may  enjoin  waste 
bj  a  vendee  in  possession,'^^  and  a  vendee,  because  of 
his  equitable  estate,  may  enjoin  a  vendor  in  posses- 
sion.''^  So,  also,  the  security  of  an  attachment  cred- 
itor"*^ or  judgment  creditor,'^'^  or  the  lien  which  a  land- 
lord has  for  renf^^  will  be  protected  by  injunction.  It 
was  formerly  thought  that,  because  of  the  nature  of 
their  legal  rights,  an  injunction  would  not  issue  be- 
tween tenants  in  common  for  any  ordinary  acts  of 
waste  either  legal  or  equitable,  but  that  acts  of  waste 
so  destructive  as  to  go  beyond  the  requisites  of  either 
of  these  might  be  enjoined.'^^  But  the  cases  show  that 
the  exercise  of  equity  jurisdiction  is  now  more  liberal, 
and  any  acts  of  waste  by  one  tenant  in  common  that  are 
inconsistent  with  prudent  management  of  the  estate 
or  that  jeopardize  the  interest  of  his  co-tenants  will  be 
enjoined.^'^     An    underlessee    will    be    enjoined    from 

V.  Villar,  L.  E.  12  Ch.  D,  812;  Parsons  v.  Hughes,  12  Md.  1;  State 
V.  Northern  Cent.  Ey.  Co.,  18  Md.  193;  V^alker  v.  Eadford,  67  Ala. 
446. 

74  Moses  Brothers  v.  Johnson,  88  Ala.  517,  16  Am.  St.  Eep.  58, 
7  South.  146;  Taylor  v.  Collins,  51  Wis.  123,  8  N.  W.  22;  May  v. 
Williams,  22  Ky.  Law  Eep,  1328,  60  S.  W.  525;  Shickell  v.  Berry ville 
etc.  Co.,  3  Va.  Sup.  Ct.  45;  Miller  v.  Waddinghan;,  91  Cal.  377,  27 
Pac.  750,  13  L.  K,  A.  680.  And  see  cases  collected  in  1  Ames,  Casea 
in  Eq.  Juris.,  222,  note  2,  483,  note  1. 

75  Smith  &  Fleek's  Appeal,  69  Pa.  St.  474;  Chambers  v,  Alabama 
Iron  Co.,  67   Ala.  353. 

76  Camp  V.  Bates,  11  Conn.  51,  27  Am.  Dec.  707;  People  v.  Van 
Buren,  136  N.  Y.  252,  32  N.  E.  775,  33  N.  E.  743,  20  L.  E.  A.  446; 
Moritz  V.  Kaliske,  31  Abb.  N.  C.  49,  28  N.  Y.  Supp.  380. 

77  Jones  V.  Britton,  102  N.  C.  166,  9  S.  E.  554,  4  L.  E.  A.  178; 
Hughlett  V.  Harris,  1  Del.  Ch.  349,  12  Am.  Dec.  104;  Vandemark  v. 
Schoonmaker,  9  Hun,  16;  Tessier  v.  Wyse,  3  Bland  Ch.  (Md.)   28. 

78  Garner  v.  Cutting,  32  Iowa,  547;  Carson  v.  Electric  etc.  Co., 
85  Iowa,  44,  51  N,  W.   1144. 

79  Smallman  v.  Onions,  3  Bro.  C.  C.  621;  Hale  v.  Thomas,  7  Ves. 
689;  Twort  v,  Twort,  16  Ves.  128. 

80  Hawley  v.  Clowes,  2  Johns.  Ch.  122;  Woods  v.  Early,  95  Va. 
307,  28  S.  E.  374;  Arthur  v.  Lamb,  2  Drew.  &  S.  430;  Southworth  v. 

Equitable  Eemedies,  Vol.  I — 52 


f  492  EQU-ITABLE  EEMEDIES.  818 

waste  at  suit  of  the  s^roimd  landlord.^^  A  tenant  in 
tail  will  not  be  restrained  from  waste,  because  he  may 
at  any  time  bar  the  entail  and  give  himself  a  fee;^-  but 
tenant  in  tail  after  possibility  of  issue  extinct  is  sub- 
ject to  be  restrained  from  committing  equitable  waste.*^ 
And  the  owner  in  fee  of  an  estate  subject  to  an  execu- 
tory devise  will  also  be  enjoined  from  committing  equi- 
table waste.^'*  Tenant  by  the  curtesy  is  subject  to  in- 
junction against  all  waste.**^  The  injunction  against 
waste  may  include  anyone  who  is  colluding  with  the 
tenant  in  committing  it.^^ 

Smith,  27  Conn.  355,  71  Am.  Dec.  72;  Connole  v.  Boston  etc.  Co.,  20 
Mont.  523,  52  Pac.  263;  Morrison  v.  Morrison,  I'l-J.  In.  l.  nt,'^.  -jy 
S.  E.  901;  Wi.liamson  v.  Jones,  43  W.  Va.  562,  64  Am.  St.  Kep.  891, 
27  S.  E.  411,  38  L.  E.  A.  694;  State  v.  Judge,  52  La.  Ann.  io3,  26 
South,  769;  Mott  v.  Underwood,  148  N.  Y.  463,  51  Am.  St.  Rep. 
711,  42  N.  E.  1048;  AshLy  v.  Ashby  (N.  J.),  40  Atl.  118;  Binswanger 
V.  Henninger,  1  Alaska,  509. 

81  Farrant  v.  Lovel,  3  Atk.  723;  Maddox  v.  White,  4  Md.  72,  59 
Am.  Dec.  67. 

82  Turner  v.  Wright,  2  De  Gex,  F.  &  J.  234;  Savile's  Case,  Casea 
temp.  Talbot,  16  (cited);  Attorney-General  v.  Marlborough,  3  Madd. 
498.     Contra,  Wallington  v.  Taylor,  1  N,  J.  Eq.  314,  318. 

83  Williams  v.  Day,  2  Cas.  in  Ch.  32;  Attorney-General  v.  Marl- 
borough, 3  Madd.  498. 

84  Turner  v.  Wright,  2  De  Gex,  F  &  J.  234;  Wallington  v.  Tay- 
lor, 1  N.  J.  Eq.  314,  318;  Gannon  v.  Peterson,  193  111.  372,  62  N.  E. 
210,  55  L.  R.  A.  701.  Contra,  Matthews  v.  Hudson,  81  Ga.  120,  12 
Am.  St.  Eep.  305,  7  S.  E.  286. 

85  Ware  v.  Ware,  6  N.  J.  Eq.  117. 
«6  Eodgers  v.  Eodgers,  11  Barb.  595. 


819  INJIjNCTIONS    AGAINST    TRESPASS.  i  494 


CHAPTER  XXIII. 


INJUNCTIONS  AGAINST  TRESPASS. 

ANALYSIS. 

§  493.  Nature  of  the  jurisdiction. 

§§  49-i-499.  Extent  of  the  jurisdiction. 

§  495.  IrreparaLle  injury. 

§  496.  Continuous  or  repeated  trespasses. 

§  497.  Insolvency  of  defendant. 

§  498.  Miscellaneous  cases. 

§  499.  Eminent  domain. 

§  500.  What  plaintiff  must  allege. 

§  501.  Threatened  trespass. 

S§  502-506.  Dispute  as  to  title, 

§  502.  General  principles. 

§  503.  Defendant    in    possession     enjoined     from     destraetitf 
acts. 

§  504.  Defendant  not  enjoined  from  mere  use. 

§  505.  Plaintiff   in    possession. 

§  506.  Establishment  of  title. 

§  507.  Possession,  when  given  by  injunction.  ■  ■ 

§  508.  The  balance   of  injury. 

§  509.  Personal  remedy  open  to  plaintiff. 

§  510.  Relief  given. 

§  511.  Estoppel,  laches,  acquiescence. 

§  493.  Nature  of  the  Jurisdiction. — The  term  "trespass*^ 
as  used  in  equity  differs  from  waste  in  respect  to  the 
privity  of  title  between  the  plaintiff  and  the  defendant, 
and  in  respect  to  the  rightfulness  of  the  defendant's  pos- 
session of  the  land,  which  two  facts  constitute  the  tech- 
nical requisites  of  waste.  It  differs  from  trespass  in 
law  in  that  it  does  not  require  that  plaintiff  be  either 
entitled  to,  or  actually  in,  possession,  but  includes  also 
cases  in  which  plaintiff's  action  at  law  would  be  on 
the  case  or  in  ejectment.     At  an  early  day  the  court 


{  494  EQUITABLE    KEMEDIES.  820 

of  chancery  refused  to  interfere  and  restrain  any  tres- 
passer. Lord  Thurlow  broke  through  this  rule,  and 
began  to  use  the  preventive  relief  against  such  wrongs. 
He  was  followed  by  Lord  Eldon,^  and  the  jurisdiction 
is  now  firmly  established  in  its  principles,  although 
there  is  no  little  disagreement  among  the  courts — and 
especially  the  American  courts — in  applying  these  prin- 
ciples.^ The  ultimate  criterion  by  which  the  jurisdic- 
tion is  determined  is  the  inadequacy  of  the  legal  rem- 
edy, but  this  the  cases  prove  to  be  a  somewhat  flexible 
standard.  The  ideal  remedy  in  any  perfect  system  of 
administering  justice  would  be  that  which  absolutely 
precludes  the  commission  of  a  wrong,  not  that  which 
awards  punishment  or  satisfaction  for  a  wrong  after  it 
is  committed.^  Tried  by  this  test  all  legal  remedies  are 
inadequate,  and  if  "adequacy  of  legal  remedy"  were 
used  in  this  sense  by  courts  of  equity  they  would  en- 
join any  and  all  threatened  trespasses,  however  trivial, 
whether  to  realty  or  to  personalty — a  length,  it  is 
hardly  necessary  to  say,  to  which  they  have  never  gone. 

§  494.  Extent  of  the  Jurisdiction. — Instead,  the  equity 
courts  have  marked  the  limits  of  their  jurisdiction  far 
short  of  this.  Trespasses  to  personalty  are  not  en- 
joined at  all,  in  general,  on  the  ground  that  for  a  tres- 
pass, even  one  so  serious  as  to  amount  to  complete  de- 
struction, the  damages  which  a  jury  will  award  are  au 

1  Hamilton  v.  Worsefold,  10  Ves.  290,  note  (3).  See  opinions  of 
Lord  Eldon  in  Hanson  v.  Gardiner,  7  Vea.  3U5j  Thomas  v.  Oakley, 
18  Ves.  184;  Mitchell  v.  Dors,  6  Ves.  147. 

2  4  Pom.  Eq.  Jur.,  §  1356.  The  subject  of  injunctions  against  tres- 
pass is  treated  in  the  monographic  note  to  Moore  v.  Halliday,  43 
Or.  243,  99  Am.  St.  Kep.  724,  72  Pac.  801. 

3  Pom.  Eq.  Jur.,  §  1357.  This  section  of  Pom.  Eq.  Jur.  is  quoted 
CO  this  effect  in  Xenia  Eeal  Estate  Co.  v.  Macy,  147  Ind.  568,  47  N. 
E.  147. 


821  INJUNCTIONS  AGAINST  TRESPASS.  §  494 

adequate  remedy.*  And  the  same  thing  is  true  of  tres- 
passes to  realty  when  they  consist  of  single  acts  or  of 
occasional  acts  which  are  temporary  in  their  nature 
and  effect,  and  which  are  of  such  nature  that  damages 
as  estimated  by  a  jury  will  be  adequate  reparation.* 
On  the  other  side,  speaking  now  affirmatively  of  the 
many  cases  in  which  trespasses  to  realty  are  enjoined, 
they  can  be  divided  into  the  following  four  classes; 
1.  The  legal  remedy  is  inadequate  because  the  injury 
is  irreparable  in  its  nature.  2.  The  legal  remedy  is  in- 
adequate because  the  trespass  is  continuous,  or  because 
repeated  acts  of  wrong  are  done  or  threatened,  although 
each  of  these  acts,  taken  by  itself,  is  not  destructive. 
3.  The  legal  remedy  is  inadequate  because  the  defend- 
ant is  insolvent.  4.  The  legal  remedy  is  inadequate  in 
a  miscellaneous  class  of  cases  because  the  courts  of  law 
for  one  reason  or  another  cannot  give  any  or,  at  best, 
not  accurately  estimated  or  sufficient  damages,  though 
damages  would  be  a  perfectly  adequate  kind  of  rem- 
edy.    The  four  classes  will  be  discussed  in  order. 

4  This  familiar  rule  does  not  require  extensive  citation  of  cases  to 
support  it;  see  however,  Kistler  v.  Weaver,  135  N.  C.  388,  47  S.  E. 
478;  Gannon  v.  Denney  (Neb.),  97  N.  W.  959.  It  is  subject  to  an  ex- 
ception in  the  case  of  chattels  of  unique  or  peculiar  qualities  such 
that  damages  for  their  injury  or  destruction  would  be  an  inadequate 
remedy:  Arundell  v.  Pliipps,  10  Ves.  139.  See  cases  collected  in 
1  Ames,  Eq.  Juris.,  532,  note  2. 

5  Indian  Land  &  Trust  Co.  v.  Shoenfelt  (C.  C.  A.),  135  Fed.  484; 
Kredo  v.  Phelps,  145  Cal.  526,  78  Pac.  1044;  Griffith  v.  Hilliard,  64 
Vt.  643,  25  Atl.  427;  Smith  v.  Pettingill,  15  Vt.  82,  40  Am.  Dec.  667; 
Hunting  v.  Hartford  St.  Ry.  Co.,  73  Conn,  179,  46  Atl.  824;  Peterson 
V.  Orr,  12  Ga,  466,  58  Am.  Dec,  484;  Putney  v.  Bright,  106  Ga.  199, 
32  S.  E.  107;  Port  Clark  etc,  Co.  v.  Anderson,  108  111.  643,  48  Am. 
Eep.  545;  Bridges  v.  Sargent,  1  Kan.  App.  442,  40  Pac.  823;"  Sims 
V.  City  of  Frankfort,  79  Ind.  446;  Miller  v.  Burket,  132  Ind.  470,  32 
N.  E.  309;  Cross  v.  Morristown,  18  N.  J.  Eq.  305;  Worthington  v. 
Moon,  53  N.  J.  Eq.  46,  30  Atl.  251;  Hart  &  Hoy  v.  Mayor  etc.  Albany, 
9  Wend.  571,  24  Am.  Dec.  165;  Gates  v.  Johnstown  Lumber  Co.,  172 
Mass,  495,  52  N.  E.  736;   Garrett  v.  Bishop,  27  Or,  349,  4]   Pac.   10; 


I  495  EQUITABLE   EEMEDIES.  822 

§  495.  Irreparable  Injury. — The  term  "irreparable" 
has  been  often  defined  by  the  courts  in  varying  lan- 
guage.®    It  is  believed  that  the  characteristics  which 

Cresap  v.  Kemble,  26  W.  Va.  603;  Le  Roy  ▼.  Wright,  4  Saw.  530, 
Fed.  Cas.  No.  8273j  Kennedy  v.  Elliott,  85  Fed.  832;  Thorn  v.  Swee- 
ney, 12  Nev.  251;  Birmingham  etc.  Co.  v.  Birmingham  etc.  Co.,  119 
Ala.  137,  24  South.  502,' 43  L.  R.  A.  233;  Washington  etc.  Co.  v.  Coeur 
d'Alene  etc.  Co.,  2  Idaho,  580,  21  Pac.  562;  Moore  v.  Halliday,  43 
Or.  243,  97  Am.  St.  Rep.  724,  72  Pac.  801;  O'Neil  v.  City  of  McKeea- 
port,  201  Pa.  St.  386,  50  Atl.  920. 

6  The  following  are  examples  of  the  more  carefully  worded  defini- 
tions: "Irreparable,  as  being  beyond  any  method  of  pecuniary  esti- 
mation": Per  Van  Fleet,  J.,  in  Kellogg  v.  King,  114  Cal.  378,  55  Am. 
St.  Rep.  74,  46  Pac.  166.  "An  injury  is  irreparable  when  it  is  of 
Buch  nature  that  the  injured  party  cannot  be  adequately  compensated 
therefor  in  damages,  or  when  the  damages  which  may  result  there- 
from cannot  be  measured  by  any  certain  pecuniary  standard":  Per 
Lyon,  J.,  in  Wilson  v.  City  of  Mineral  Point,  39  Wis.  160.  "The 
word  'irreparable'  means  that  which  cannot  be  repaired,  restored  or 
adequately  compensated  for  in  money,  or  where  the  compensation 
cannot  be  safely  measured":  Per  Brannon,  J.,  in  Bettman  v.  Ilorness, 
42  W.  Va.  433,  26  S.  E.  271,  36  L.  R.  A.  566. 

"In  the  application  of  this  restriction  much  difficulty  occurs  in  de- 
fining what  injury  is  irreparable.  The  word  means  that  which  can- 
not be  repaired,  put  back  again,  atoned  for.  The  most  absolute  and 
positive  instance  of  it  is  the  cutting  down  'ornamental  trees,'  such 
as  the  noble  oaks  in  our  State-House  grove.  'A  tree  that  is  cut  down 
cannot  be  made  to  grow  again.'  But  the  meaning  of  the  word  'irrep- 
arable' pointed  out  by  this  example,  is  not  that  which  has  been 
adopted  by  the  courts  either  in  England  or  in  this  state.  Grass  that 
is  cut  down  cannot  be  made  to  grow  again,  but  the  injury  can  be 
adequately  atoned  for  in  money.  The  result  of  the  cases  fixes  this 
to  be  the  rule:  The  injury  must  be  of  a  peculiar  nature,  so  that  com- 
pensation in  money  cannot  atone  for  it;  where  from  its  nature  it 
may  be  thus  atoned  for,  if  in  the  particular  case  the  party  be  in- 
solvent, and  on  that  account  unable  to  atone  for  it,  it  will  be  irrep- 
arable": Per  Pearson,  J.,  in  Cause  v.  Perkins,  56  N.  C,  (3  Jones 
Eq.)  177,  69  Am.  Dec.  728,  730.  In  the  leading  case  of  Jerome  v. 
Ross,  .7  Johns.  Ch.  315,  332,  11  Am.  Dec.  484,  487,  488,  Chancellor  Kent 
defined  "irreparable"  as  the  "great  and  irremediable  mischief, 
which  damages  could  not  compensate,  because  the  mischief  reaches 
to  the  very  substance  and  value  of  the  estate,  and  goes  to  the  de- 
struction of  it  in  the  character  in  which  it  is  enjoyed."  But  that  thig 
definition  of  Chancellor  Kent  is  far  too  narrow,  in  the  light  of 
modern  decisions,  see  4  Pom.  Eq.  Jur.,  §  1357,  and  note  1. 


823  INJUNCTIONS    AGAINST    TRESPASS.  |  495 

the  courts  should  seek  as  certainly  marking  an  injury 
as  irreparable,  and  which  the  majority  of  the  decisions 
show  to  be  its  essential  features,  are:  (1)  That  the  in- 
jury is  an  act  which  is  a  serious  change  of,  or  is  de- 
structive to,  the  property  it  affects  either  physically  or 
in  the  character  in  which  it  has  been  held  and  enjoyed. 
(2)  That  the  property  must  have  some  peculiar  quality 
or  use  such  that  its  pecuniary  value,  as  estimated  by 
a  jury,  will  not  fairly  recompense  the  owner  for  the 
loss  of  it.'^  In  the  application  of  this  test,  however, 
there  are  many  conflicting  decisions.  Thus,  some 
courts  treat  land  as  per  se  property  of  peculiar  value 
and  will  enjoin  destructive  trespasses  to  its  substance 
without  regard  to  the  question  whether,  in  the  particu- 
lar case,  it  really  does  have  any  peculiar  value  or  not. 
By  these  courts  it  is  made  a  subject  for  protection  by 
injunction,  just  as  in  cases  of  contract  it  is  a  subject 
for  specific  performance  without  reference  to  its  qual- 
ity, use  or  value.^     Other   courts,  however,  in   similar 

7  It  will  be  observed  ttat  tbig  definition  is  largely  drawn  from  those 
of  Chancellor  Kent  in  Jerome  v.  Eoss,  and  Pearson,  Ch.  J.,  in  Gause 
V.  Perkins,  quoted  in  the  previous  note.  It  attempts  to  describe 
those  trespasses  which  are  from  their  nature  beyond  reparation  in 
money  payment,  such  as  a  jury  would  give,  and  to  exclude  other  cases 
for  which  the  legal  remedy  may,  indeed,  be  inadequate,  but  for  other 
reasons  than  this.  There  is  sometimes  a  tendency  to  make  the  term 
"irreparable"  virtually  extensive  enough  to  include  all  cases  for 
which  the  legal  remedy  is  inadequate,  as,  for  example,  the  statement 
of  Pearson,  Ch.  J.,  supra,  that  the  insolvency  of  the  defendant  will 
make  trespass  irreparable.  See,  also.  Camp  v.  Dixon,  112  Ga.  872, 
876-877,  38  S.  E.  71,  52  L.  E.  A.  755.  Cf.  Elliott  on  Eoads  and 
Streets  (2d  ed.),  §  665,  and  Wood  on  Nuisance  (3d  ed.),  §•  778,  The 
meaning  of  "irreparable"  does  not  preclude  all  possibility  of  money 
compensation,  such,  for  instance,  as  the  plaintiff  himself  might  fix. 
See  this  point  discussed  in  Dent  v.  Auction  Mart  Co.,  L.  E.  2  Eq. 
238. 

8  See  Thomas  v.  Oakley,  18  Ves.  184;  Hexo  v.  Gill,  L.  E.  7  Ch.  App. 
699;  Eichards  v.  Dower,  64  Cal.  €2,  28  Pac.  113.  And  see,  also, 
Walker  v.  Emerson,  89  Cal.  456,  26  Pac.  968,  in  which  the  court  en- 


i  495  EQUITABLE    REMEDIES.  b24 

cases,  have  taken  the  attitude  that  the  question,  whether 
an  injury  is  irreparable  or  not,  is  an  open  matter  of 
fact  to  be  inquired  into  in  every  case,  and  have  refused 
injunctions  against  destructive  trespasses  because  the 
value  of  the  land  injured  was  small,  and  it  had  no 
peculiar  use  or  quality  for  the  owner.*  So,  too,  in  the 
case  of  mining,  the  courts  have  sometimes  applied  the 
test  of  irreparability  to  the  particular  case,  and  find- 
ing that  the  owner  had  no  use  for  the  land  beyond  get- 
ting its  value  from  it  in  the  shape  of  minerals,  have 
refused  to  grant  the  injunction  when  the  defendant  was 

joined  the  taking  of  water  from  plaintiff's  land  by  a  ditch  which  de- 
fendant dug  on  plaintiff's  land  for  the  purpose,  saying:  "Such  an 
act  is  an  injury  to  the  right,  and  if  threatened  to  be  continued  should 
be  enjoined,  whatever  opinion  persons  other  than  the  owner  may  have 
about  the  extent  of  the  damage  that  may  result."  In  Kichards 
V.  Dower,  supnij  the  bill  was  to  enjoin  the  digging  of  a  tunnel  through 
the  plaintiff's  land.  The  lower  court  found  that  the  tunnel  would 
not  cause  irreparable  injury,  and  refused  the  injunction.  On  appeal 
this  holding  was  reversed,  the  court,  per  Sharpstein,  J.,  saying:  "The 
finding  that  the  injury  is  not  irreparable  is  inconsistent  with  the 
findings  which  describe  the  character  of  the  work  which  it  is  sought 
to   have   enjoined." 

9  Jerome  v.  Eoss,  7  Johns.  Ch.  315,  11  Am.  Dec.  484;  Bassett  v. 
Salisbury  etc.  Mills,  47  N.  H.  426;  Ocean  City  E.  Co.  v.  Bray,  55 
N.  J.  Eq.  101,  35  Atl.  839;  Crescent  Min.  Co.  v.  Silver  King  Min. 
Co.,  17  Utah,  444,  17  Am.  St.  Rep.  810,  54  Pac.  244;  Schuster  v.  Myers, 
148  Mo.  422,  50  S.  W.  103;  King  v.  Mullins,  27  Mont.  364,  71  Pac. 
155;  Harley  v.  Montana  Ore  Purchasing  Co.,  27  Mont.  388,  71  Pac. 
407.  These  cases  are  not  to  be  reconciled  with  those  cited  in  the 
previous  note.  In  Crescent  Min.  Co.  v.  Silver  King  Min,  Co.,  supra. 
the  trespass  complained  of  was  the  laying  and  keeping  of  water  pipes 
in  land  of  the  plaintiff.  Because  the  land  was  barren  and  rockv, 
and  of  small  value,  the  court  held  that  the  injury  was  not  irrepar- 
able, and  refused  the  injunction,  McCarty,  J.,  dissenting,  and  cit- 
ing Kichards  v.  Dower,  supra,  as  indistinguishable.  In  King  v.  Mul- 
lins, supra,  the  trespass  complained  of  was  the  sinking  of  a  shaft 
in  a  mining  claim.  In  both  of  these  cases  stress  is  laid  on  the  fact 
that  the  worthless  soil  dug  up  was  not  carried  away,  but  left  on  the 
owner's  premises.  But  in  Jerome  v.  Eoss,  sripra\  the  thing  complained 
of  was  the  digging  and  carrying  away  of  stone  from  the  plaintiff's 
land. 


825  INJUNCTIONS  AGAINST  TEESPASS.  §  495 

solvent,  and  thus  was  able  to  give  tlie  legal  relief  of 
damages,^**  although  in  England,  and  generally  in 
America,  mining  is  a  form  of  trespass  that  is  gener- 
ally considered  as  irreparable,  and,  as  such,  is  en- 
joined.^ ^  And  the  same  thing  may  be  said  of  the  cut- 
ting of  or  destruction  of  timber.^^     These  conflicts  in 

10  Eice  V.  Looney,  81  HI.  App.  537;  Erskine  v.  Forest  Oil  Co.,  80 
Fed.  583;  Deep  Eiver  Co.  v.  Fox,  4  Ired.  Eq.  (39  N.  C.)  61;  Kellar 
V.  Bullington,  101  Ala.  267,  14  South.  466.  No  English  court  has 
acted  on  this  view,  though  in  a  comparatively  early  case  (Haight  v. 
Jaggar,  2  Coll.  231,  decided  in  1845),  Bruce,  V.  C,  said:  "The  de- 
fendants ....  are,  it  is  true,  by  working  the  coal,  taking  away 
the  very  substance  of  the  property;  which  may,  in  a  sense,  be  per- 
haps called  in  this  case,  and  might  in  others  most  certainly  be,  waste 
or  destruction;  but,  on  the  other  hand,  it  is  the  only  mode  in  which 
the  property  in  question  can  be  usefully  enjoyed  or  made  available, 
and  may  therefore,  in  a  sense,  perhaps,  be  deemed  not  more  than  tak- 
ing the  ordinary  usufruct  of  the  thing  in  dispute." 

11  Mitchell  V.  Dors,  6  Ves.  147;  Anderson  v.  Harvey's  Heirs,  10 
Gratt.  386;  Merced  Mining  etc.  Co.  v.  Fremont,  7  Cal.  317,  68  Am. 
Dec.  262;  Hamanond  v.  Winchester,  82  Ala.  470,  2  South.  892;  Bett- 
man  v.  Harness,  42  W.  Va.  433,  26  S.  E.  271,  36  L.  E.  A.  566;  Moore 
V.  Jennings,  47  W.  Va.  181,  34  S.  E.  793;  Erhardt  v.  Boaro,  113  U. 
S.  537,  5  Sup.  Ct.  565,  28  L.  ed.  1116.  In  Erhardt  v.  Boaro,  supra, 
there  was  an  application  for  a  temporary  injunction  pending  the  set- 
tlement of  a  dispute  over  a  mining  claim,  the  bill  alleging  that  about 
one  hundred  and  fifty  tons  of  ore  containing  gold  and  silver  to  the 
value  of  $25,000  had  been  extracted,  and  that  about  one  hundred  tons 
of  it  were  still  on  the  premises.  In  granting  a  temporary  injunction 
against  further  digging  or  removing  the  ore  already  dug,  the  court, 
per  Field,  J.,  said:  "It  is  now  a  common  practice  in  cases  where 
irremediable  mischief  is  being  done  or  threatened,  going  to  the  de- 
struction of  the  substance  of  the  estate,  such  as  the  extracting  of 
ores  from  a  mine,  or  the  cutting  down  of  timber,  or  the  removal 
of  coal,  to  issue  an  injunction,  though  the  title  to  the  premises  be 
in  litigation." 

12  In  Musch  V.  Burkhart,  83  Iowa,  301,  32  Am.  St.  Eep.  305,  48  N. 
W.  1025,  12  L.  E.  A.  484,  plaintiff  sought  to  enjoin  the  setting  of 
boundary  trees,  alleging  he  would  be  damaged  to  the  extent  of  $200. 
In  commenting  on  this  allegation  as  to  damages,  the  court  said. 
"But  it  does  not  follow  that  the  damages  would  not  be  irreparable 
within  the  meaning  of  the  law.  The  trees  cannot  be  replaced,  nor 
can  their  benefit  to  plaintiff  and  the  comfort  and  satisfaction    which 


I  495  EQUITABLE    REMEDIES.  826 

the  cases  thus  result,  not  so  much  from  different  views 
of  what  constitutes  an  irreparable  injury,  as  an  original 
question,  as  from  a  different  practice  with  reference 
to  distributing  certain  cases  of  the  same  general  char- 
acter in  subject-matter,  into  fixed  groups  that  shall  be 

he  derives  from  them  be  accurately  measured  by  a  pecuniary  stand- 
ard  A  person  is  not  obliged  to  suffer  his  property  to  be  de- 
stroyed at  the  will  of  another,  even  though  he  may  be  able  to  recover 
ample  pecuniary  compensation  therefor.  This  is  especially  true  of 
property  like  trees,  planted  for  and  adapted  to  a  certain  use,  and 
serving  a  sjiecial  purpose.  Their  owner  has  an  interest  in  them  which 
he  may  protect,  and  to  be  deprived  of  it  without  his  consent  would  be 
to  suffer  irreparable  injury,  within  the  meaning  of  the  law."  In- 
junctions against  cutting  timber  were  granted  in  the  following  cases: 
Courthope  v.  Mapplesden,  10  Ves.  290;  Kinder  v.  Jones,  17  Ves.  110; 
Neale  v.  Cripps,  4  Kay  &  J.  472;  Lowndes  v.  Settle,  3  New  Eep,  409, 
o3  L.  J.  Ch.  451,  10  Jur.,  N.  S.,  226;  Stanford  v.  Hurlestone,  L.  E. 
9  Ch.  App.  116;  United  States  v.  Guylard,  79  Fed.  21;  King  v,  Stu- 
art, 84  Fed.  546;  King  v.  Campbell,  85  Fed.  814;  Shipley  v.  Ritter, 
7  Md.  408,  61  Am.  Dec.  371;  Smith  v.  Eock,  59  Vt.  232,  9  Atl.  551; 
Griffith  V.  Hilliard,  64  Vt.  643,  25  Atl.  427;  Crane  v.  Davis  (Miss.), 
21  South.  17;  Daubenspeck  v.  Grear,  18  Cal.  443;  Sapp  v.  Eoberts, 
18  Neb.  299,  25  N.  W.  96;  Markham  v.  Howell,  33  Ga.  508;  Powell 
V.  Cheshire,  70  Ga.  357,  48  Am.  Eep.  572;  Fluharty  v.  Mills,  49  W. 
Va.  446,  38  S.  E.  521;  Camp  v.  Dixon,  112  Ga.  872,  38  S.  E. 
71,  52  L.  E.  A.  757,  citing  4  Pom.  Eq.  Jur.,  §  1357;  Eamey  v. 
Counts  (Va.),  47  S.  E.  1006;  Newton  v.  Brown,  134  N.  C.  439,  46  S. 
E.  994;  Sears  v.  Ackerman,  138  Cal.  583,  72  Pac.  171;  Louisville  etc. 
Co.  V.  Gibson,  43  Fla.  315,  31  South.  230  (statutory);  Houck 
V.  Patty,  100  Mo.  App.  389,  73  S.  W.  389.  Injunctions  against  cut- 
tinjT  timber  were  refused  in  the  following  cases:  Wilcox  Lumber  Co. 
V.  Bullock,  109  Ga.  502,  35  S.  E.  52;  Schoonovcr  v.  Bright,  24  W.  Va. 
C98;  Watson  v,  Ferrell,  34  W.  Va.  406,  12  S.  E.  724;  Curtin  v.  Stout 
(W.  Va.),  50  S.  E.  810;  Cause  v.  Perkins,  56  N.  C.  (3  Jones  Eq.) 
177,  69  Am.  Dec.  728;  Sharpe  v.  Loane,  124  N.  C.  1,  32  S.  E.  318; 
Myers  v.  Hawkins,  67  Ark.  413,  56  S.  W.  640;  Woodford  v. 
Alcxnnder,  35  Fla.  333,  17  South.  658  (disapproved  in  Brown  v.  So- 
lary,  37  Fla.  102,  19  South.  161);  Carney  v.  Hadley,  32  Fla.  344,  37 
Am.  St.  Eep.  101,  14  South.  4,  22  L.  E.  A.  233;  Thatcher  v.  Humble, 
67  Ind.  444.  Observe  that  Georgia  and  West  Virginia  have  some 
decisions  in  which  the  injunctions  were  granted  and  others  in  which 
they  were  refused,  the  special  circumstances  of  the  cases  distinguish- 
ing them.     In   Cause   v.  Perkins,  supra,  Pearson,  J.,  said:  "In  tho 


827  INJUNCTIONS  AGAINST  TEESPASS.  <  495 

considered  as  per  se  cases  of  irreparable  injury.  As  a 
further  source  of  conflict,  there  are  a  number  of  cases 
which,  when  dealing  with  trespasses  to  real  property, 
tend  to  give  to  the  term  "irreparable"  an  enlarged  sig- 
nification,  and    make    it  virtually    synonymous    with 

present  condition  of  our  country,  does  the  cultivation  of  pine  trees 
for  turpentine,  or  the  cutting  down  of  oak  trees  for  staves,  or  cypress 
trees  for  shingles,  cause  an  irreparable  injury — one  which  cannot  be 
compensated  for  in  damages?  The  very  purpose  for  which  these 
trees  are  used  by  the  owners  of  land  is  to  get  from  them  turpentine, 
staves  and  shingles  for  sale.  It  follows,  therefore,  as  a  matter  of 
course,  that  if  the  owner  of  the  land  recovers  from  a  trespasser  the 
value  of  the  trees  that  are  used  for  those  purposes,  he  thereby  re- 
ceives compensation  for  the  injury,  and  it  cannot  in  any  sense  of 
the  word  be  deemed  irreparable."  In  Camp  v.  Dixon,  supra,  the 
plaintiffs  owned  large  bodies  of  timber  and  had  invested  large  sums 
of  money  in  mills  and  other  equipment.  The  defendants  threatened 
to  denude  the  land  of  its  timber,  and  as  this  would  be  the  ruin  of  the 
plaintiff's  business,  the  court  held  that  the  facts  of  the  case  showed 
irreparable  injury,  stronger  than  the  ordinary  one  of  cutting  timber. 
The  case  was  also  rested  on  the  ground  of  preventing  multiplicity  of 
suits,  and  on  the  fact  that  a  jury's  estimate  of  damages  would  be 
conjectural.  In  Fluharty  v.  Mills,  aiipra,  the  bill  alleged  that  the 
timber  which  the  defendant  was  threatening  to  destroy  was  espe- 
cially valuable  to  the  land,  and. that  the  taking  away  of  the  timber- 
would  permanently  injure  the  land;  this  the  court  thought  was  a 
Bui'.lcient  showing  of  irreparable  injury.  But  the  same  court,  in  Wat- 
son V.  Ferrell,  supra,  refused  an  injunction  against  cutting  timber, 
on  the  ground  that  irreparable  injury  was  not  shown,  saying  as  to 
this:  "When  we  look  further  at  the  allegations  of  the  bill  we  find 
that  he  alleges  that  the  greater  portion  of  the  land  is  in  a  state  of 
nature,  and  covered  by  a  valuable  growing  timber,  etc.,  which  tim- 
ber is  very  valuable,  and  makes  such  land  much  more  valuable  than 
it  would  be  without  said  growing  timber,  non  constat,  that  the  land 
is  not  filled  with  coal,  iron,  and  other  minerals,  or  that  the  timber 
constitutes  its  chief  value;  and  there  are  no  facts  stated  on  the  face 
of  the  bill  that  would  show  that  the  plaintiff  would  suffer  irreparable 
injury  by  the  cutting  and  removal  of  seventy-five  or  any  number  of 
trees  from  said  land  when  it  is  not  alleged  that  the  defendants  are 
insolvent."  In  Brown  v.  Solary,  37  Fla.  102,  19  South.  161,  the 
court,  per  Mabry,  C.  J.,  said:  "When  the  value  of  land  consists 
chiefly,  if  not  entirely,  in  the  timber  thereon,  its  destruction  amounts 
to  irreparable  injury,  within  the  rule  on  the  subject." 


(  405  EQUITABLE    EEMEDIES.  828 

''serious  injury." ^^  Tliere  are,  of  course,  no  particular 
classes  of  cases  to  which  irreparable  injuries  are  con- 
fined.    Other  illustrations  are  collected  in  the  note.^* 

13  In  a  recent  case  the  court,  after  quoting  the  definition  of  Pear- 
son J.,  in  Uause  v.  Perkins,  which  has  been  given  ante,  note  6, 
said:  "This  definition  is  fairly  deducible  from  the  earlier  cases,  but 
it   is    entirely   too    narrow   to   meet   the    decisions     of    more   modern 

times In  the  light  of  modern  decisions,  an  irreparable  injury 

may  be  said  to  be  one  which,  either  from  its  nature,  or  from  the  cir- 
cumstances surrounding  the  person  injured,  or  the  financial  condi- 
tion of  the  person  committing  the  injury,  cannot  be  readily,  ade- 
quately, and  completely  compensated  with  money":  Per  Cobb,  J.,  in 
Camp  V.  Dixon,  112  (?a.  872,  38  S.  E.  71,  73,  52  L.  K.  A.  757.  See, 
also.  Champ  v.  Kendrick,  130  Ind.  549,  30  N.  E.  787,  citing  Pom.  Eq. 
Jur.,  §  1357,  and  Lemmon  v.  Guthrie  Center,  113  Iowa,  36,  86  Am. 
St.  Eep,  361,  84  Mo.  986.  In  this  last  case  the  court  enjoined  town 
authorities  from  moving  a  building  of  the  plaintiff,  saying:  "An  ex- 
amination of  all  the  cases  indicates  a  strong  tendency  to  grant 
equitable  relief  whenever  the  trespass  permanently  diminishes  the 
substance  of  the  estate  in  that  which  constitutes  its  chief  value, 
without  reference  to  the  fact  that  the  value  may  be  measured  in 
money,  on  the  ground  that  the  plaintiff  is  entitled  to  have  the  iden- 
tity  and   integrity   of  his   estate   preserved." 

14  Injury  to  or  removal  of  buildings:  Pattou  v.  Moore,  16  W.  Va. 
428,  37  Am.  Eep.  789;  De  Veney  v.  Gallagher,  20  N.  J.  Eq.  33;  Echel- 
kamp  V.  Schroder,  45  Mo.  505;  Everett  v.  City  of  Marquette,  53 
Mich.  450,  19  N.  W.  140;  Lemmon  v.  Town  of  Guthrie  Center,  113 
Iowa,  36,  86  Am.  St.  Eep.  361,  84  N.  W.  986;  Auckland  v.  Westmin- 
ster Board,  L.  E.  7  Ch.  App.  597;  District  Tp.  of  Lodomillo  v.  Dist. 
Tp,  of  Cass,  54  Iowa,  115,  6  N.  W.  163;  Lewis  v.  Town  of  North 
Kingstown,  16  E,  I.  15,  27  Am.  St.  Eep.  724,  11  Atl.  173.  Laying 
out  public  roads  over  plaintiff's  land:  Erwin  v.  Fulk,  94  Ind.  235, 
citing  4Pom.  Eq.  Jur.,  §  1357;  Grigsby  v.  Burtnett,  31  Cal.  406  (cf. 
Leach  v.  Day,  27  Cal.  643);  Ballentine  v.  Town  of  Harrison,  37  N. 
J.  Eq.  (10  Stew.)  560,  45  Am.  Eep.  667.  Grazing  sheep  on  plaintiff's 
land:  Northern  Pac.  E.  E.  Co.  v.  Cunningham,  89  Fed.  594;  Martia 
V.  Platte  Valley  Sheep  Co.  (Wyo.),  76  Pac.  571;  Strawberry  etc.  Co. 
V.  Chipman,  13  Utah,  454,  45  Pac.  348;  Dastervignes  v.  United  States, 
122  Fed.  30.  Interference  with  graves:  First  Evangelical  Church  v. 
Walsh,  57  111.  363,  11  Am.  Eep.  21;  Choppin  v.  Dauplin,  48  La.  Ann. 
1217,  55  Am.  St.  Eep.  313,  20  South.  681,  33  L.  E.  A.  133;  Beatty  v. 
Kurtz,  2  Pet.  566,  7  L.  ed.  521;  Davidson  v.  Eeed,  111  111.  167,  53 
Am.  Eep.  613;  Wormley  v.  Wormley,  207  111.  411,  69  N.  E.  865.  Ee- 
moval  and  defacing  of  landmarks:  Preston  v.  Preston,  85  Ky.  16,  2 


829  INJUNCTIONS  AGAINST  TRESPASS.  §  496 

§  406.  Continuous  or  Eepeated  Trespasses. — Tlie  juris- 
diction of  equity  to  restrain  continuous  or  repeated 
trespasses  rests  on  the  ground  of  avoiding  a  repetition 
of  similar  actions.^^  It  is  a  basis  of  jurisdiction  tliat 
is  frequently  found  in  cases  where  the  injury  is  also 
irreparable.  Very  often,  indeed,  the  injury  is  irrepa- 
rable only  because  it  is  continuous  or  repeated,  when 
it  would  not  be  if  temporary,  and  in  such  cases  the  in- 
junction will  issue  as  a  matter  of  course.^^  For  the 
further  discussion  of  this  subject,  it  will  be  convenient 
to  consider,  first,  the  cases  in  which  the  injury  is  the 
result  of  a  single  act,  or  set  of  acts,  of  the  defendant, 
which  afterwards  operate  by  virtue  of  natural  laws  to 
produce  the  injury;  and,  second,  the  cases  in  which 
there  are  several  or  many  acts  of  the  defendant  or  de- 

S.  W.  501.  Eemoval  of  a  fence:  Bolton  v.  McShane,  67  Iowa,  207, 
25  N.  W.  135  J  Gilfillan  v.  Shattuck,  142  Cal.  27,  75  Pac.  646;  Wolf  etc. 
Co,  V.  Lonyo,  132  Mich.  162,  102  Am.  St.  Rep.  412,  93  N,  W.  251. 
Beatty  v.  Kurtz,  supra,  is  an  excellent  example  of  one  of  the  clearest 
kinda  of  irreparable  injury.  The  bill  was  to  enjoin  the  defendants 
from  removing  tombstones  and  graves  and  dispossessing  the  plaintiffs 
of  the  burying-ground.  In  granting  the  injunction,  Story,  J.,  said: 
"This  is  not  a  case  of  a  mere  private  trespass;  but  a  public  nuisance, 
going  to  the  irreparable  injury  of  the  Georgetown  congregation  of 
Lutherans.  The  property  consecrated  to  their  use  by  a  perpetual 
servitude  or  easement,  is  to  be  taken  from  them,  the  sepulchres  of 
the  dead  are  to  be  violated,  the  feelings  of  religion,  and  the  senti- 
ments of  natural  affection  of  the  kindred  and  friends  of  the  deceased 
are  to  be  wounded;  and  the  memorials  erected  by  piety  or  love,  to  the 
memory  of  the  good  are  to  be  removed,  so  as  to  leave  no  trace  of 
the  last  home  of  their  ancestry  to  those  who  may  visit  the  spot  in  fu- 
ture generations.**  An  injury  falling  far  short  of  this  may,  of  course, 
be  irreparable. 

15  4  Pom.  Eq.  Jur.,  §  1357.  This  entire  class  of  cases  is  compre- 
hended in  the  broader  jurisdiction  of  equity  to  prevent  multiplicity 
of  suits,  for  a  consideration  of  which  see  1  Pom.  Eq.  Jur.,  §§  243- 
275. 

18  See,  e.  g.,  Griffith  ▼.  Hilliard,  64  Vt,  643,  25  Atl.  427;  Kellogg 
V.  King,  114  Cal.  378,  55  Am.  St.  Rep.  74,  46  Pac.  166;  Ellis  v.  Blu« 
Mountain  Forest  Assn.,  69  N.  H.  385,  41  Atl.  856,  42  L.  B.  A.  570. 


§  496  EQUITABLE    REMEDIES.  830 

fendants  which  give  rise  to  as  many  different  causes  of 
actions.  The  distinction  is  roughly  that  between  con- 
tinuing and  repeated  trespasses,  and  is  based  on  the 
distinctions  made  in  the  cases  themselves.  If  a  tres- 
pass is  of  the  first  class  and  produces  substantial  dam- 
age to  the  plaintiff,  the  authorities  are  well  agreed  that 
a  i)roper  case  for  an  injunction  is  presented.^^  If, 
however,  the  injury  is  little  or  nothing  more  than  the 
technical  invasion  of  plaintiff's  legal  right  without 
substantial  damage,  there  is  a  division  among  the 
courts,  though  a  majority  of  the  decisions  show  that 
the  foundation  principle  of  this  branch  of  the  jurisdic- 
tion fairly  includes  all  such  cases,  whether  the  damage 
is  substantial  or  not.^^  If  plaintiff's  legal  remedy  may 
be  vexatious,  harassing,  and  hence  inadequate  when 
he  recovers  substantial  damages,  still  more  would   it 

17  Fitzgerald  v.  Urton,  5  Cal.  308;  Mohawk  etc.  Co.  v.  Artclier, 
6  Paige,  83;  Henderson  v.  New  York  Cent,  E.  E.  Co.,  78  N.  Y.  423; 
Biriuingham  Traction  Co.  v.  Southern  Bell  etc,  Co.,  119  Ala.  144,  24 
South.  731;  Davis  v.  Frankenlust  Tp.,  118  Mich,  494,  76  N.  W,  1045; 
Calmelet  v.  Sichl,  48  Neb.  50o,  58  Am.  St.  Eep,  700,  €7  N.  W.  467; 
Gobeille  v.  Meunier,  21  E.  I.  103,  41  Atl.  1001;  Barbee  v.  Shannon, 
1  Ind,  Ter.  199,  40  S.  W.  584;  McCloskey  v.  Doherty,  97  Ky.  200,  30  S. 
W.  649. 

18  That  an  injunction  should  issue  in  such  a  case:  Goodson  v.  Eich- 
ardson,  L,  E,  9  Ch,  App,  221;  Powell  v,  Aiken,  4  Kay  &  J,  343;  Allen 
V.  Martin,  L.  E.  20  Eq.  462;  Delaware  etc.  Co.  v.  Breckenridge,  57 
N.  J.  Eq.  154,  41  Atl.  966,  affirmed  in  58  N.  J.  Eq.  581,  43  Atl.  1097; 
and  the  language  of  the  courts  in  most  of  the  cases  in  which  in  fact 
there  is  substantial  damage  shown,  indicates  that  this  question  is  of 
no  moment.  Injunctions  were  refused  in  McCullough  v.  Denver,  39 
Fed.  307;  Nicodemus  v.  Nicodemus,  41  Md.  529;  Hoy  v.  Sweetman, 
19.  Nev.  376,  12  Pac.  504;  Fisher  v.  Carpenter,  67  N.  H.  569,  39  Atl. 
1018;  Crescent  etc.  Co.  v.  Silver  etc.  Co.,  17  Utah,  444,  70  Am.  St. 
Eep.  810,  54  Pac.  244;  Savannah  etc.  Co.  v.  Suburban  etc.  Co.,  93 
Ga.  240,  18  S.  E.  824;  Whitlock  v.  Consumers'  etc.  Co.,  127  Ind,  62, 
26  N.  E.  570;  Christman  v.  Howe  (Ind,),  70  N.  E,  809.  If  the  plain- 
tiff is  a  reversioner,  however,  it  is  proper  to  require  that  he  show 
substantial  damage,  because  otherwise  he  shows  no  legal  cause  of 
action  in  himself:  Cooper  v.  Crabtree,  L,  E,  20  Ch.  D.  589;  Coney  v. 


831  INJUNCTIONS  AGAINST  TEESPASS.  §  496 

seem  to  be  so  when  his  recovery  is  only  nominal.'* 
When  the  trespasses  complained  of  are  caused  by  the 
separate  acts  of  individuals,  a  multiplicity  of  suita 
may  be  caused  to  plaintiff  either  because  the  defend^ 
ants  are  numerous  or  because  a  single  defendant 
does  the  same  or  similar  acts  repeatedly.  The  princi- 
ple involved  in  all  such  cases  is  the  same,  and  injunc- 
tions should  issue.  And  when  the  basis  of  the  multi- 
plicity of  suits  which  plaintiff  fears  is  that  the  de- 
fendants are  numerous,  all  authorities  agree  in  grant- 
ing the  injunctions.^'*     But    when  it  is   the  case  of   it 

Brunswick  etc.  Co.,  116-  Ga.  222,  42  S.  E.  498.  The  following  are  ad- 
ditional cases  in  which  continuing  trespasses  were  enjoined:  Dosoria 
Pond  Co.  V.  Campbell,  164  N.  Y.  596,  58  N.  E.  1087,  affirming  25  App. 
Div.  179,  50  N.  Y.  Supp.  819;  Cobb  v.  Mass.  Cham.  Co.,  179  Mass.  423, 
60  N.  E.  790;  Ehodes  v.  McNamara  (Mich.),  98  N,  W.  392;  Simpson 
V.  Moorhead,  65  N,  J.  Eq.  623,  56  Atl.  887;  McClellan  v.  Taylor,  54 
S.  C.  430,  32  S.  E.  527;  Hall  v.  Nester,  122  Mich.  141,  80  N.  W. 
982;  Kagsdale  v.  Southern  Ky.  Co.,  €0  S.  C.  381,  38  S.  E.  609;  Oli- 
vella  V.  New  York  etc.  Co.,  31  Misc.  Eep.  203,  64  N.  Y.  Supp.  1086; 
Hahl  V.  Sugo,  46  App.  Div.  632,  61  N.  Y.  Supp.  770,  affirming  27  Misc. 
Eep.  1,  57  N.  Y.  Supp.  920;  Providence  etc.  Co.  v.  City  of  Fall  Eiver, 
183  Mass.  535,  67  N.  E.  647;  Miller  v.  Hoeschler,  121  Wis.  558,  99  N. 
W.  228  (citing  4  Pom.  Eq.  Jur.,  §  1347). 

19  It  is  often  given  as  an  additional  reason  for  enjoining  repeated 
or  continuing  trespasses  to  land  that  otherwise  there  is  danger  lest 
they  "ripen  into  an  easement."  Apart  from  the  remoteness  of  any 
such  danger,  which  alone  would  seem  enough  to  defeat  the  injunc- 
tion, the  reason  would  appear  to  be  unsound  because  of  the  fact  that 
plaintiff,  by  bringing  suit,  or  interfering  with  the  trespasses  once  in 
every  period  necessary  for  the  ripening  of  an  easement,  would  pre- 
vent that  danger:  See  McGregor  v.  Silver  King  Min.  Co.,  l4  Utah, 
47,  60  Am.  St.  Eep.  883,  45  Pac.  1091;  Hart  v.  Hilderbrandt,  30  Ind. 
App.  415,  66  N.  E.  173. 

20  This  statement  is,  of  course,  subject  to  the  qualifications  which 
the  questions  of  "community  of  interest"  or  "identity  of  issues" 
have  made  in  the  decisions  with  reference  to  the  proper  joinder  of 
the  defendants  in  one  suit.  For  a  full  discussion  of  this  point  and 
collection  of  the  authorities,  see  1  Pom.  Eq.  .Jur.,  §§  243-275.  Typi- 
cal cases  illustrating  this  group  are,  Smith  v.  Bivens,  56  Fed.  352; 
United  States  Freehold  Land   etc.   Co.  v.   Gallegos,  89  Fed,  769,   32 


I  496  EQUITABLE  EEMEDIES.  832 

single  defendant  who,  by  repeating  his  acts  of  tres- 
pass, makes  it  necessary  for  plaintiff  to  pursue  his  le- 
gal remedy  only  by  a  succession  of  actions,  the  de- 
cisions are  curiously  diverse.  It  is  held,  in  a  small 
group  of  cases,  that  this  is  not  the  kind  of  multiplicity 
of  suits  which  equity  enjoins,  but  that  instead  an  injunc- 
tion is  proper  only  when  different  persons  assail  plain- 
tiff's right.^^  The  other  view,  and  the  one  sustained 
alike  \)j  the  weight  of  authority  and  by  principle,  is  that 
if  a  defendant  manifests  a  purpose  to  persist  in  perpe- 
trating his  unlawful  acts,  the  vexation,  expense  and 
trouble  of  prosecuting  the  actions  at  law  make  the  legal 
remedy  inadequate,  and  justify  a  plaintiff  in  coming 
into  equity  for  an  injunction.^^     None  of  the  cases  show 

C.  C.  A.  470;  New  York  Cent.  etc.  Co.  v.  Warren,  31  Misc.  Eep. 
571,  64  N.  Y.  Supp.  781;  Boston  etc.  Co.  v.  Sullivan,  177  Mass.  230, 
83  Am^t.  Eep.  275,  58  N.  E.  689;  Palmer  v.  Israel,  13  Mont.  209, 
33  Pac.   134. 

21  Best  V.  Drake,  11  Hare,  369;  Smith  v.  Gardner,  12  Or.  221,  53 
Am.  Eep.  342,  6  Pac.  771;  Jerome  v.  Eoss,  7  Johns.  Ch.  315,  11  Am. 
Dec.  484;  Carney  v.  Hadley,  32  Fla.  344,  37  Am.  St.  Eep.  101,  14 
South.  4,  22  L.  E.  A.  233;  Eoebling  Sons'  Co.  v.  First  Nat.  Bank, 
30  Fed.  744;  Deegan  v.  Neville,  127  Ala.  471,  85  Am.  St.  Eep.  137, 
29  South.  173;  Taylor  v.  Pearce,  71  111.  App.  525. 

22  Musselman  v.  Marquis,  1  Bush  (Ky.),  463,  89  Am.  Dec.  637; 
Ladd  V.  Osborne,  79  Iowa,  93,  44  N.  W.  235;  Gray  Lumber  Co.  v.  Gas- 
kin  (Ga.),  50  S.  E.  164,  quoting  Pom.  Eq.  Jur.,  §  1357;  Mendelson 
V.  McCabe,  144  Cal.  230,  103  Am.  St.  Eep.  78,  77  Pac.  915;  Boglino 
V.  Giorgetta  (Colo.  App.),  78  Pac.  612;  Heman  v.  Wade,  74  Mo. 
App.  339,  citing  4  Pom.  Eq.  Jur.,  §  1357;  McClellan  v,  Taylor,  5-1 
S.  C.  430,  32  S.  E.  527;  Allen  v.  Martin,  L.  E.  20  Eq.  462;  Lembeck 
V.  Nye,  47  Ohio  St.  336,  21  Am.  St.  Eep.  828,  24  N.  E.  686,  8  L.  E. 
A.  578;  New  York  etc.  Co.  v.  Scovill,  71  Conn.  136,  71  Am.  St. 
Eep.  159,  41  Atl.  246,  42  L.  E.  A.  157;  Owens  v.  Crossett,  105  111. 
354;  Valentine  v.  Schreiber,  3  App.  Div.  235,  38  N.  Y.  Supp.  417; 
Sills  v.  Goodyear,  80  Mo.  App.  128;  Pohlman  v.  Lohmeyer,  60  Neb. 
364,  83  N.  W.  201;  Garrett  v.  Bishop,  27  Or.  349,  41  Pac.  10;  Barbee 
V.  Shannon,  1  Ind.  Ter.  199,  40  S.  W.  584,  citing  1  Pom.  Eq.  Jur.,  §  264; 
Lynch  v.  Egan  (Neb.),  93  N.  W.  775;  Atchison  etc.  Co.  v.  Spaulding, 
69  Kan.  431,  77  Pac.  106;  Blondell  v.  Consolidated  Gas  Co.,  89  Md.  732, 


833  INJUNCTIONS  AGAINST  TRESPASS.  S  497 

any  tendency  to  make  the  seriousness  of  the  damage 
the  criterion,^^  and  the  jurisdiction  attaches  as  well  to 
trespasses  to  personalty  as  to  realty.^^ 

§  49-7.  Insolvency  of  Defendant. — The  inadequacy  of 
legal  remedies,  ordinarily,  against  an  insolvent  tres- 
passer is  obvious,  and  the  reason  for  equity's  interven- 
tion in  such  cases  is  clear.  The  number  of  cases  in 
which  the  defendant's  insolvency  is  made  a  material 
part  of  the  court's  reason  for  granting  an  injunction 
is  very  great.^^  The  number  of  cases  in  which  the 
question  has  arisen  whether  insolvency  alone  is  enough 
to  support  an  injunction  is  not  so  large,  but  is  suffi- 

43  Atl.  817,  46  L.  E.  A.  1S7;  Thomas  v.  Eobinson  (Iowa),  92  N.  W, 
70;  Hayoie  v.  Salt  Eiver  etc.  Co.  (Ariz.),  71  Pac.  944;  Lake  Shore 
etc,  Co.  V.  Felton,  103  Fed.  227,  43  C.  C.  A.  189;  Gulf,  C.  &  S.  F.  Ey. 
Co.  V.  Puckett  (Tex.  Civ.  App.),  82  S.  W.  662  (using  railway  velocipede 
on  railroad  track  repeatedly).  In  Musselman  v.  Marquis,  supra, 
the  bill  was  to  enjoin  the  defendant  from  throwing  down  and  removing 
fencing.  The  facts  were  that  the  defendant  had  already  repeat- 
edly thrown  down  the  fencing,  and  had  declared  his  intention  of 
continuing  the  commission  of  similar  trespasses.  In  allowing  the 
injunction  the  court,  per  Hardin,  J.,  said:  "Indeed,  without  re- 
gard to  the  alleged  insolvency  of  the  defendant,  as  the  other  facts 
alleged  disclose  a  determined  purpose  on  his  part  to  persist  in  per- 
petrating the  unlawful  acts  complained  of,  thus  rendering  redress 
at  law  only  obtainable  by  a  multiplicity  of  suits,  and  probably  with- 
out any  sufficient  compensation  for  the  vexation,  expense,  and 
trouble  attending  their  prosecution,  we  are  of  the  opinion  that  the 
chancellor  had  power  to  enjoin  the  mischief,  in  order  to  prevent 
oppressive  litigation,  the  principle  of  equitable  jurisdiction  being, 
that  where  there  is  no  adequate  remedy  at  law,  the  chancellor  must 
take  jurisdiction,  or  otherwise  the  damage  is  irreparable." 

23  See  Ellis  v.  Wren,  84  Ky.  254,  1  S.  W.  440. 

24  Warren  Mills  v.  New  Orleans  Seed  Co.,  65  Miss.  391,  7  Am.  St. 
Eep.  671,  4  South.  293. 

25  See  e.  g.,  Musselman  v.  Marquis,  1  Bush  (64  Ky.),  463,  89  Am. 
Dec.  637;  Milan  Steam  Mills  v.  Hickey,  59  N.  H.  241;  Bensley  v. 
Mountain  etc.  Co.,  13  Cal.  306,  73  Am.  Dec.  575;  Owens  v.  Crossett, 
105  111.  354;  McKay  v.  Chapin,  120  N.  C.  159,  26  S.  E.  701;  Clark 
V.  Wall  (Mont.),  79  Pac.  1052. 

Equitable  Eemedies,  Vol.  1—53 


i  498  EQUITABLE  KEMEDIES.  834 

cient  to  show  the  general  recognition  by  the  courts  of 
the  glaring  insufficiency  of  a  judgment  for  damages 
against  an  insolvent.^*  When,  however,  the  legal  rem- 
edy is  not  rendered  inadequate  because  of  the  defend- 
ant's insolvency,  as  when  the  desired  relief  is  posses- 
sion of  the  land  which  may  be  procured  by  the  ordinary 
possessory  action  at  law,  the  injunction  will  be  re- 
fused.-^ 

§  498.  Miscellaneous  Cases.— Besides  the  three  classes 
of  cases  just  discussed,  there  are  other  cases  which 
permit  of  no  definite  classification,  but  which,  largely 
for  that  reason,  show  most  clearly  the  comprehensive 
nature  of  equity  jurisdiction  to  restrain  trespasses.  In 
one  of  the  leading  cases  of  this  kind  the  supreme  court 
of  the  United  States  quoted  as  the  criterion  of  the  ju- 
risdiction :  "It  is  not  enough  that  there  is  a  remedy  at 
law;  it  must  be  plain  and  adequate,  or,  in  other  words, 
as  practical  and  efficient  to  the  ends  of  justice,  and  its 
prompt  administration,  as  the  remedy  in  equity."-® 
Cases  which  illustrate  this  broad  rule  are  collected  in 
the  note.2^ 

26  West  V.  Walker,  3  N.  J.  Eq.  279,  note  B;  Wilson  v.  Hill,  46 
N.  J.  Eq.  3G9,  19  Atl.  1097;  Paige  v.  Akins,  112  Cal.  401,  44  Pac.  G66; 
Harms  v.  Jacobs,  158  111.  505,  41  N.  E.  1071;  Eyan  v.  Fxilglium,  96 
Ga.  234,  22  S.  E.  940;  Champ  v.  Kendrick,  130  Ind.  549,  30  N.  E.  787; 
Leach  v.  Haiboiigh  (Neb.),  91  N.  W.  521;  Hanley  v.  Waterson,  39  W. 
Va.  214,  19  S.  E.  536.  And  see  further  cases  collected  in  1  Ames, 
Cases  in  Eq.  Juris.  524,  note  2.  Contra,  Pensacola  etc.  Co.  v.  Spratt, 
12  Fla.  26,  91  Am.  Dec.  747;  Parker  v.  Furlong  (Or.),  62  Pac.  490; 
Moore  v.  Halliday,  43  Or.  243,  99  Am.  St.  Eep.  724,  72  Pac.  801; 
Loyd  V.  Blackburn  (W.  Va.),  50  S.  E.  740;  Heilman  v.  Union  Canal 
Co.,  37  Pa.  St.  100;  Puryear  v.  Sanford,  124  N.  C.  276,  32  S.  E.  685. 

27  Warlier  v.  Williams,  53  Neb.  143,  73  N.  W.  539. 

28  Watson  V.  Sutherland,  5  Wall.  74,  18  L.  ed.  580. 

29  Watson  V.  Sutherland,  5  Wall.  74,  18  L.  ed.  580  (seizure  of 
stock  of  goods  on  execution  enjoined  because  law  of  damages  would 
allow  plaintiff  to  recover  only  value   of  the  goods  and  not  the  losi 


835  INJUNCTIONS  AGAINST  TRESPASS.  §  499 

§  499.  Eminent  Domain. — There  is  one  class  of  cases 
in  which  an  injunction  will  issue  against  a  trespass 
without  regard  to  the  character  of  the  act,  viz.,  when 
property  is  taken  or  used  by  a  defendant  under  the 
right  of  eminent  domain  without  first  complying  with 
the  prescribed  formalities  for  ascertaining  and  making 
compensation.  In  such  cases,  the  courts  do  not  stop 
to  inquire  whether  the  value  of  the  property  to  be  taken 
was  little  or  great,  whether  the  injury  to  the  complain- 
ant was  great  or  small,  but  grant  the  injunction  first, 
on  the  ground  that  the  constitutional  provision  makes 
the  payment  of  a  properly  ascertained  compensation 
a  condition  precedent  to  the  right  to  take,  and  that  in- 
junction is  the  only  way  to  enforce  this  provision.^** 

to  his  business);  North  v.  Peters,  138  U.  S.  271,  34  L.  ed.  936 
(same  as  preceding  case).  Other  cases  of  the  same  sort  are  col- 
lected in  1  Ames,  Cases  in  Eq.  Juris.,  532,  note  3.  But  see  Tomlin- 
son  V.  Eubio,  16  Cal.  202,  disapproved  by  Currey,  J.,  in  Tevis  v. 
Ellis,  25  Cal.  518;  Thomas  v.  James,  32  Ala.  723  (bill  by  a  cestui 
que  trust,  who  would  maintain  no  action  at  law);  and  see  Lytle  v. 
James,  98  Mo.  App.  337,  73  S.  W.  287  (licensee  plaintiff);  Payne  v. 
Kansas  etc.  Co.,  46  Fed.  546  (damages  would  be  conjectural);  Lon- 
don etc.  Co.  V.  Lancashire  etc.  Co.,  L.  R.  4  Eq.  174  (same) ;  West- 
moreland etc.  Gas  Co.  v.  De  Witt,  130  Pa.  St.  235,  18  Atl.  724,  5 
L.  R.  A.  731  (same);  Poughkeepsie  Gas  Co.  v.  Citizens'  Gas  Co., 
89  N,  Y.  493  (same);  Phillips  v.  Winslow,  57  Ky.  (18  B.  Mon.)  431, 
68  Am.  Dec.  729  (seizure  and  sale  of  cars  under  wrongful  execution 
enjoined  because  it  would  stop  business  of  a  railroad) ;  Barbee  v. 
Shannon,  1  Ind.  Ter.  199,  40  S.  W.  584  (damages  which  plaintiff,  a 
lessor,  could  recover,  might  be  less  than  he  would  be  liable  for  'to 
his  lessee  for  breach  of  covenant) ;  Miller  v.  Wills,  95  Va.  337,  28 
S.  E.  337  (non-residence  of  defendant  of  weight  in  determining  pro- 
priety of  granting  an  injunction);  Morgan  v.  Baxter,  113  Ga.  144, 
38  S.  E.  411  (same,  but  non-residence  alone  not  enough).  See  Poke- 
gama  etc.  Co.  v.  Klamath  River  etc.  Co.,  96  Fed.  34;  Allen  Coal 
Co.  V.  Ohallis,  103  111.  App.  52;  City  of  Los  Angeles  v.  Los  Angeles 
etc.  Co.,  124  Cal.  368,  5  Pac.  210. 

30  McElroy  v.  Kansas  City,  21  Fed.  257;  Searle  v.  City  of  Lead, 
10  S.  D.  405,  73  N.  W.  913;  Donovan  v.  Allert,  11  N.  D.  289,  95 
Am.  St.  Rep.  720,  91  N.  W.  441,  58  L.  R.  A.  775;  Birmingham  Trac- 


i  500  EQUITABLE  EEMEDIES.  836 

The  injunction  granted  in  such  cases  may  be  an  abso- 
lute one  which  forbids  defendant  further  to  trespass 
till  after  proper  condemnation  proceedings,^^  or  it  may 
be  so  framed  as  to  reach  the  same  end  as  such  proceed- 
ings would,  and  thus  save  a  second  legal  action.^^ 

§  500.  What  Plaintiff  Must  Allege.— A  plaintiff  who 
asks  for  the  aid  of  equity  against  trespass,  must,  of 
course,  show  a  case  to  justify  the  extraordinary  relief 
he  seeks.  Hence,  he  must  show  in  his  bill  not  only  a 
legal  wrong,23  but,  further,  why  the  legal  remedy  is  not 
adequate.^"*     And  it  is  not  sufficient   for  this   purpose 

tion  Co.  V.  Birmingham  Ey.  etc.  Co.  (Ala.),  24  South.  368;  Village 
of  Itasca  V.  Schroeder,  182  111.  192,  55  N.  E.  50;  Yates  v.  Milwaukee, 
10  Wall.  479,  19  L.  ed.  984.  This  subject  is  treated  at  length,  ante, 
chapter  XX.  See  the  following  cases  for  instances  of  relief  granted 
when  no  attempt  has  been  made  to  condemn  the  property:  Baya  v. 
Town  of  Lake  City,  44  Fla.  491,  33  South.  400;  Shipley  v.  Western 
Md.  Tidewater  E.  Co.,  99  Md.  115,  56  Atl.  968;  Freud  v.  Detroit  &  P. 
Ey.  Co.,  133  Mich.  413,  95  N.  W.  559.  See,  also,  Atlantic  &  B.  E.  Co. 
T.  Seaboard  Air  Line  Ey.,  116  Ga.  412,  42  S.  E.  761. 

31  Gilraan  v.  Sheboygan  etc.  Co.,  40  Wis.  653;  Eosenberger  v. 
Miller,  1  Mo.  App.  640,  61  Mo.  App,  422;  Bensley  v.  Mountain  etc. 
Co.,  13  Cal.  306,  73  Am.  Dec.  575;  Central  etc.  Co.  v,  Philadelphia 
etc.  Co.,  95  Md.  428,  52  Atl.  752;  Folley  v.  City  of  Passaic,  26  N.  J. 
Eq.  216;  Peck  v.  Schenectady  Ey.  Co.,  170  N.  Y.  298,  63  N.  E.  357, 
modifying    67   App.   Div.   359,   73   N.  Y.   Supp.   794. 

32  Henderson  v.  New  York  Cent.  etc.  Co.,  78  N.  Y.  423;  Pappen- 
heim  v.  Metropolitan  etc.  Co.,  128  N.  Y.  436,  26  Am.  St.  Eep.  486, 
28  N.  E.  518,  13  L.  E.  A.  401.     See  ante,  §§  473,  470. 

?i3  Stat©  V.  Eost,  59  La.  Ann.  995,  23  South.  978;  Flannery  v. 
Hightower,  97  Ga.  592,  25  S.  E.  371;  Kellogg  v.  King,  114  Cal.  378, 
55  Am.  St.  Eep.  74,  46  Pac.  166.  And  so  if  a  plaintiff's  bill  fails  to 
show  he  has  title  to  the  property  in  question,  he  will  be  refused 
relief:  Amos  v.  Norcross,  58  N.  J.  Eq.  256,  43  Atl.  195;  Perkins 
V.  Mason,  105  Mo.  App.  315,  79  S.  W.  987;  Powell  v.  Brinson,  120 
Ga.  36,  47  S.   E.  499;   Tiernan  v.  Miller   (Neb.),  96  N,  W.   661. 

34  Collins  V.  Sutton,  94  Va.  127,  26  S.  E.  415;  Smith  v.  Schlink,  IG 
Colo.  App.  325,  62  Pac.  1044.  Contra,  Kaufman  v.  Wiener,  169  El. 
596,  48  N.  E.  479,  affirming.  68  111.  App.  250;  Murphy  v.  Lincoln,  63 
Vt.  278,  22  Atl.  418. 


837  INJUNCTIONS  AGAINST  TEESPASS.  §  501 

that  he  merely  allege  an  "irreparable"  or  a  "continu- 
ing" trespass.  He  must  set  forth  the  facts  from  which 
the  court  may  draw  the  inference  that  the  legal  rem- 
edy is  not  sufficient.^'  Nor  is  it  necessary  that  he 
should  allege  that  the  injury  will  be  irreparable;''  the 
same  reason  which  makes  it  necessary  for  him  to  set 
out  the  facts,  makes  it  unnecessary  for  him  to  do  more. 

§  501.  Threatened  Trespass. — In  the  subject  of  trespass 
as  elsewhere  the  main  function  of  an  injunction  is  to 
preserve  property  from  future  injury.  Courts  will  not, 
however,  enjoin  against  a  mere  speculative  or  possible 
injury.  Instead,  a  reasonable  probability  of  the  in- 
jury resulting  must  be  shown.^^  Hence,  if  defendant 
has  neither  done  nor  threatened  any  wrongful  acts,  and 
denies  his  intention  to  do  the  acts  against  which  an 
injunction  is  sought,  it  will  be  refused,^^  On  the  other 
hand,  if  plaintiff  shows  that  defendant  has  threatened 
to  do  acts  of  the  kind  which  equity  enjoins,  that  is 
enough  to  rest  his  case  upon.^^     And  threats  mn.v  '  ^ 

85  Waldron  v.  Marsh,  5  Cal.  119;  Carlisle  v.  Stevenson,  3  Md.  (  h. 
504;  Kesner  v.  Miesch,  90  III.  App.  437;  Thorn  v.  Sweeney,  12  Nev. 
251;  Wiggins  v.  Middleton,  117  Ga.  162,  43  S.  E.  433. 

36  Boston  etc.  B.  R.  v.  Sullivan,  177  Mass.  230,  83  Am.  St.  Eop. 
275,  58  N.  E.  689;  Kaufman  v.  Wiener,  169  111.  596,  48  N.  E.  479, 
reversing,  68  111.  App.  250;  Chappell  v.  Jasper  County  etc.  Co.,  31 
Ind.  App.  170,  66  N.  E.  515. 

87  Ilaupt  V.  Independent  etc.  Co.,  25  Mont.  122,  63  Pac.  1033; 
Lorenz  v.  Waldron,  96  Cal.  243,  31  Pac.  54;  Montana  Ore  etc  Co. 
V.  Boston  &  M.  etc.  Co.,  22  Mont.  159,  56  Pac.  120. 

38  Hagemeyer  v.  Village  of  St.  Michael,  70  Minn.  482,  73  N.  W. 
412;  Chicago  etc.  Co.  v.  Brandan,  81  Mo.  App.  1;  Kerlin  v.  West, 
4  N.  J.  Eq.  449. 

39  New  York  etc.  Co.  v.  Scovill,  71  Conn.  136,  71  Am.  St.  Rep. 
159,  41  Atl.  246,  42  L.  R.  A.  157;  Union  Mill  etc.  Co.  v.  Warren, 
82  Fed.  522;  Negaunee  etc.  Co.  v.  Ironcliffs  Co.  (Mich.),  06  N.  W. 
468;  More  v.  Massini,  32  Cal.  390. 


S  502  EQUITABLE  EEMEDIES.  83S 

purely  verbal  without  any  acts,^*'  or  they  may  consist  of 
acts  from  which  the  inference  as  to  defendant's  inten- 
tion may  be  made.*^  If,  however,  the  wrongful  act  is 
done,  and  it  is  not  accompanied  by  threats  of  repeti- 
tion, and  does  not  itself  constitute  a  threat,  the  injunc- 
tion will  not  issue,  since,  in  such  case,  it  is  needless.'*^ 

§  502.  Dispute  as  to  Title;  General  Principles. — The  ef- 
fect of  a  dispute  as  to  title  on  the  propriety  of  granting 
an  injunction  to  a  plaintiff  who  seeks  to  enjoin  de- 
structive acts  of  a  defendant  who,  in  turn,  justifies  on 
the  ground  that  he  is  the  owner  of  the  land  affected, 
has  been  much  discussed  by  the  courts,  and  a  consid- 
erable difference  of  judicial  opinion  has  resulted.  The 
source  of  the  difficulty  was  a  dlctum^^  and  a  decisiou^^ 
of  Lord  Eldon  that  when  a  plaintiff  stated  that  the 
defendant  claimed  by  an  adverse  title,  he  stated  himself 
out  of  court, — a  statement  of  the  law  which,  when  taken 
absolutely,  Lord  Eldon  himself  disapproved,  and  which, 
after  repeated  expressions  of  disapproval,^^  the  Eng- 
lish courts  finally  modified  a  half  century  later. '*^  A.s 
will  appear  below,  the  great  weight  of  American  au- 
thority is  also  opposed  to  the  rule  thus  unqualifiedly 
formulated.    The  reason  that  a  dis^^ute  as  to  title  should 

40  Union  Mill  etc.  Co.  v.  Warren,  82  Fed.  522;  Lyon  v.  Hunt,  11 
Ala.  295,  46  Am.  Dec.   216. 

41  Bonaparte  v.  Camden  etc.  Co.,  Baldw.  (C.  C.)  205,  231,  232,  Fed. 
Cas.   No.   1617;    McMinn   v.   Karter,    123   Ala.   502,   26   South.   649. 

42  Ocmiilgee  Lumber  Co.  v.  Mitchell,  112  Ga.  528,  37  S.  E.  749; 
Ketchum  v.  Depew,  81  Hun,  278,  30  N.  Y.  Supp.  794. 

43  Pillsworth   V.   Hopton,    [1801]    6   Ves.   51. 

44  Smith  V.   Collyer,   [1803]    8  Ves.  89. 

45  See  Jones  v.  Jones,  3  Mer.  160;  Haigh  v.  Jaggar,  2  Coll.  C.  C. 
231;  Davenport  v.  Davenport,  7  Hare,  217. 

46  Commissioners  v.  Blackett,  [1848]  12  Jur.  151;  Neale  v.  Cripps, 
4  Kay  &  J.  472;  Lowndes  v.  Bettle,  3  New  Eep.  409,  33  L.  J.  Ch. 
451,  10  Jur.,  N.  S.,  226.  The  point  is  now  covered  by  statute  in  Eng- 
land (36  &  37  Vict.,  c,  66,  §  25,  subsec.  8). 


839  INJUNCTIONS  AGAINST  TRESPASS.  §  502 

preclude  the  granting  of  an  injunction  permanently 
is  that  under  such  circumstances  "it  is  possible  that 
title  may  be  in  the  defendant.  ....  If  he  has  the 
title,  then  he  has  a  right  to  possession,  and  ought  not 
to  be  precluded  from  acquiring  it.  But  if  the  injunc- 
tion stands,  he  is  under  a  permanent  judicial  inhibition 
from  in  'any  wise'  meddling  with  the  property.  His 
right  to  litigate  the  title  in  an  action  at  law  sliould  be 
preserved  to  him."^'^  In  brief,  one  should  not  be  finally 
enjoined  from  acts  which  may  be  wholly  rightful  and 
lawful.  But  on  the  other  hand,  it  does  not  follow  from 
this  that  the  injunction  should  be  wholly  refused. 
There  being  a  substantial  dispute  over  the  title,  it  is  clear 
that  the  plaintiff  may  prove  to  be  the  owner,  and  his  pos- 
sible interest  should  be  protected  at  once,  because  other- 
wise "the  injury  may  be  committed  before  trial. "*^ 
Hence,  a  true  regard  for  the  interests  of  both  parties 
requires  that  a  temporary  injunction  should  issue  to 
preserve  the  property  in  its  present  condition  till  the 
ov/nership  is  decided.  Such  temporary  injunction  is 
of  course  subject  to  the  usual  governing  principles  of 
temporary  injunctions,  which  are  discussed  elsewhere. 
Some  of  the  more  important  of  these  principles  in  this 
connection  are  that,  since  the  action  of  the  court  may 
wrong  one  party,  whether  it  grant  or  refuse  the  in- 
junction,— the  defendant  is  wronged  by  granting  the 
injunction  if  he  is  the  rightful  owner,  the  plaintitf  is 
wronged  by  refusing  it  if  he  proves  title, — the  courts 
are  largely  guided  in  forming  their  conclusion  by  bal- 
ancing these  possible  wrongs  against  each  other,  and 
acting  unfavorably  toward  whichever  party  will  be 
least  injured  by  unfavorable  action;"*^  a  small  degree  of 

47  Ecbelkamp   v.   Schrader,  45   Mo.   505. 

48  Gauge  v.  Perkins,  3  Jones   Eq.   177,  69   Am.  Dec.   728. 

49  Mabel  Mining  Co.  v.  Peaistin  etc.  Co.,   121   Ala.  567,  25  Soutlu 


S  502  EQUITABLE  EEMEDIES.  840 

laches  will  lose  plaintiff  his  right  to  itf^  its  purpose 
is  almost  always  to  preserve  the  status  quo;^^  the  pros- 
pective injury  on  which  plaintiff  must  rest  his  case  is 
that  which  will  occur  before  he  can  have  time  to  estab- 
lish his  right,  not  the  full  and  entire  injury  on  which 
his  right  to  a  permanent  injunction  may  rest,  and  the 
injury  to  occur  in  this  interval  must  be  sufficient  to 
support  an  injunction  ;^2  and,  finally,  its  continuance 
or  dissolution  is  dependent  upon  the  outcome  of  the 
dispute  as  to  title.^^  It  follows  that  when  the  sole 
basis  of  equity's  jurisdiction  is  to  prevent  a  multiplic- 
ity of  suits  caused  by  a  continuing  trespass  or  by  re- 
peated trespasses  of  a  single  individual,  a  temporary 
injunction  will  rarely,  if  ever,  be  appropriate."^     For 

754;  Hicks  v.  Compton,  18  Cal.  206;  City  of  Terre  Haute  v.  Farm- 
ers' etc.  Co.,  99  Fed.  838,  40  C.  C.  A.  117;  Brower  v,  Williams,  44 
App.  Div.  337,  60  N.  Y.  Supp.  716;  Ehreureich  v.  Froment,  54  App. 
Div.  196,  66  N.  Y.  Supp.  597;  Rogers  v.  Ashbridge,  23  Pa.  Co.  Ct. 
492,  9  Pa.  Dist.  195;  McGregor  v.  Silver  King  etc.  Co.,  14  Utah,  47, 
60  Am,  St.  Eep.  883,  45  Pac.  1091;  Crescent  etc.  Co.  v.  Silver  King 
etc,  Co.,  17  Utah,  444,  70  Am,  St.  Rep.  810,  54  Pac.  244;  New  York 
etc.  Establishment  v.  Fitch,  1  Paige,  97;  Lownsdale  v.  Grays  Harbor, 
117  Fed.  983;  New  Jersey  etc.  Co,  v.  Gardner  etc,  Co,,  113  Fed 
395. 

ao  Field  V,  Beaumont,  1  Swanst,  204;  Jones  v.  Jones,  3  Mer.  163 
Heal  Del  Monte  etc.  Co,  v.  Pond  Co.,  23  Cal.  82;  Higgins  v.  Wood 
ward,  Hopk,  342;  remark  of  Bruce,  L.  J.,  in  Attorney-General  v 
Sheffield  etc.  Co.,  3  De  Gex,  M.  &  G,  304,  328. 

51  Blakemore  v.  Glamorganshire  etc.  Co.,  1  Mylne  &  K.  154;  Mam 
moth  etc.  Co.'s  Appeal,  54  Pa.  St,  183, 

52  New  York  etc.  Establishment  v.  Fitch,  1  Paige,  97. 

53  Hill  V,  Bowie,  1  Bland  (Md.),  593. 

54  New  York  etc.  Establishment  v.  Fitch,  1  Paige,  97.  In  this  case 
the  plaintiff  sought  an  injunction  against  the  defendant  using  ita 
dock  from  day  to  day  for  landing  and  taking  on  freight  and  passen- 
gers. A  preliminary  injunction  having  been  granted,  a  motion  to 
dissolve  was  made  on  the  matter  of  the  bill  only.  In  granting  the 
motion,  Walworth,  C,  said:  "Whether  the  facts  stated  by  the  coun- 
sel on  the  argument,  in  relation  to  the  controversy  in  this  cause, 
would  be  sufficient  to  sustain  the  jurisdiction  of  this  court  on  tho 
principle  of   quieting  them  in  the  enjoyment  of  their  property,   and 


«41  INJUNCTIONS  AGAINST  TEESPASS.  §  503 

it  is  the  plaintiff's  own  fault  if,  during  the  interval 
while  he  is  establishing  his  right,  he  brings  a  number 
of  suits.  He  can  afford  to  wait  till  the  right  is  deter- 
mined in  his  favor  at  least  better  than  the  defendant 
can  afford  to  give  up  even  temporarily  the  right  to  use 
the  property,  if  it  be  his. 

§  503.  Defendant  in  Possession  Enjoined  from  Destructive 
Acts. — In  the  leading  English  case  which  discusses  the 
effect  of  a  dispute  as  to  title  on  the  granting  of  an  in- 
junction against  trespass,  the  court,  after  an  exhaustive 
review  of  the  cases,  made  the  following  distinction : 
"Where  a  defendant  is  in  possession,  and  a  plaintiil" 
claiming  possession  seeks  to  restrain  him  from  commit- 
ting acts  similar  to  those  here  complained  of  [cutting 
timber^  ornamental  trees  and  shrubs,  and  sods],  the 
court  will  not  interfere  unless,  indeed  (as  in  x\eale  v. 
Cripps),  the  acts  amount  to  such  flagrant  instances  of 
spoliation  as   to  justify  the  court   in  departing  froiu 

the  general  principle But  where  the  person  in 

possession  seeks  to  restrain  one  who  claims  by  an  ad- 
verse title,  the  tendency  of  the  court  will  be  to  grant 

preventing  the  necessity  of  a  perpetual  litigation,  it  is  not  necetsary 
to  decide  at  tliis  time. 

"It  is  sufficient  for  the  decision  of  the  question  immediately  before 
the  court,  that  it  does  not  appear  that  any  serious  damage  or  irrep- 
arable injury  -will  take  place,  if  the  defendants  continue  to  run 
their  boat  and  land  their  passengers,  as  they  have  heretofore  done, 
until  the  complainants'  rights  are  admitted  by  the  answer  or  settled 
on  the  hearing.  On  the  other  hand,  I  can  readily  see  that  retainino; 
the  preliminary  injunction  may  produce  great  injury  to  the  defend- 
ants, and  for  which  they  would  be  entirely  without  remedy,  if  it 
should  finally  appear  that  they  were  only  in  the  exercise  of  their 
legal  rights. ' '  And  see,  also,  to  the  same  effect,  Carney  v.  Hadley,  32 
Fla.  344,  37  Am.  St.  Eep.  101,  14  South.  4,  22  L.  E.  A.  233;  Nevitt  v. 
Gillespie,  2  Miss.  (1  How.)  108,  26  Am.  Dec.  696;  Delaware  etc.  Co.  v. 
Breckinridge,  55  N.  J.  Eq.  141,  35  Atl.  756;  Smith  v.  Gardner,  12  Or. 
221,  33  Am.  Bep.  346,  6  Pac.  771. 


5  503  EQUITABLE  EEMEDIES.  842 

the  injunction,  at  least  when  the  acts  either  do  or  may 
tend  to  the  destruction  of  the  estate. "^^  A  close  anal- 
ysis of  the  above  passage  may  perhaps  lead  to  the  con- 
clusion that  the  class  of  acts  which  will  lead. to  an  in- 
junction in  the  one  case  usually  will  have  the  same 
effect  in  the  other.  Nevertheless  the  distinction  is  one 
which  cannot  be  disregarded  in  view  of  the  state  of  au- 
tliority,  nor  is  it  without  reason.  That  reason,  as  given 
in  the  same  case,  is  as  follows:  "If  a  man  claims  to  be 
owner  of  an  estate  of  which  he  either  is  in  possession, 
or  in  a  position  tantamount  to  that,  the  court  will  be 
very  slow  to  interfere  to  restrain  such  an  apparent 
owner  from  doing  those  acts  which  an  owner  so  situ- 
ated may  properly  do.  There  is  a  wide  difference  be- 
tween such  a  case  and  that  of  a  person  claiming  to  be 
owner  (whatever  the  ground  of  his  claim),  not  taking 
proceedings  at  law  to  recover,  but  coming  on  the  own- 
er's estate,  and  doing  acts  injurious  to  it."°^  In  other 
words,  the  fact  of  possession  in  the  defendant  is  re- 
garded as  strong  evidence  of  title  in  him,  and  the  plain- 
tiff must  therefore  make  a  stronger  case  to  justify  an 
interference  with  him.  The  logical  effect  of  this  rea- 
soning is,  that  the  plaintiff  should  be  granted  an  in- 
junction either  if  he  produce  stronger  evidence  of 
title  than  would  otherwise  be  required  of  him,  in  order 
to  offset  the  inference  of  title  which  defendant's  pos- 
session raises,  or  if  (as  is  suggested  in  the  passage  above 
cited),  he  show  that  defendant  is  committing  "flagrant 
instances  of  spoliation" — that  is,  more  than  ordinarily 
destructive  acts.  The  actual  effect  is  that  some  courts 
either  grant  the  injunction  only  in  the  latter  case,  or 

55  Lowndes  v.  Settle,  33  L.  J.  Ch.  451,  457,  3  New   Rep.  409,  10  Jur., 
N.  S.,  226. 

56  33  L.  J.  Cb.  451,  453;  Leininger's  Appeal,  106  Pa.  St.  398;  see 
for  another  reason,  Talbot  v.  Scott,  4  Kay  &  J.  96. 


8! 3  INJUNCTIONS  AGAINST  TRESPASS.  §  50J 

else  lay  down  the  hard-and-fast  rule  that  no  injunction 
will  issue  when  the  defendant  is  in  possession  under 
claim  of  title,  till  the  plaintiff  has  established  his  own- 
ership in  an  action  brought  for  that  purpose.^'^  The 
weight  of  authority,  however,  has  now  come  to  be  that 
even  in  this  case  a  temporary  injunction  will  issue  if, 
pending  litigation,  there  will  otherwise  be  such  serious 
acts  of  trespass  that  damages  will  not  be  an  adequate 
remedy.^^  The  reason  which  sustains  this  holding  has 
never  been  more  forcibly  and  clearly  stated  than  in 
Duvall  V.  Waters,^^  one  of  the  earliest  American  cases 
in  which  the  question  was  considered,  in  which  Chan- 
cellor Bland  said:  "Should  it  turn  out  that  the  defend- 
ant had  an  unquestionable  title,  then  the  granting  of 

57  Storm  V.  Mann,  4  Johns.  Ch.  (N.  Y.)  21;  Perry  v.  Parker,  1 
Wood.  &  M.  280,  Fed.  Cas.  No.  11,010;  Leininger's  Appeal,  106  Pa.  St. 
398;  Schoonover  v.  Bright,  24  W.  Va.  698;  Munyon  v.  Filmore  (Ind." 
Ter,),  76  S.  W.  257;  Cresap  v.  Kemble,  26  W.  Va,  603;  Carpenter  v. 
Gwj-nn,  35  Barb.  395;  Nevitt  v.  Gillespie,  2  Miss.  (1  How.)  108,  26 
Am.  Dec.  6&G.  (overruled  in  Woods  v.  Eiley,  72  Miss.  73,  18  South. 
384);  Taylor  v.  Clark,  89  Fed.  7;  Graham  v.  Womack,  82  Mo.  App. 
618;  Gildersleeve  v.  Overstolz,  97  Mo.  App.  303,  71  S.  W.  371. 

58  Shubrick  v.  Guerard,  2  Desaus.  616;  Neale  v.  Cripps,  4  Kay 
&  J.  472;  Duvall  v.  Waters,  1  Bland  Ch.  569,  18  Am.  Dec.  350;  Harris 
V.  Thomas,  1  Hen.  &  M.  (Va.)  18;  Erhardt  v.  Boaro,  113  U.  S.  537,  5 
Sup.  Ct.  565,  28  L.  ed.  1116,  affirming  8  Fed.  692,  2  McCrary,  141; 
Buskirk  v.  King,  25  U.  S.  App.  607,  72  Fed.  22,  18  C.  C.  A.  418; 
Hicks  V.  Michael,  15  Cal.  107;  Williams  v.  Long,  129  Cal.  229,  61 
Pac.  1087;  Heman  v.  Wade,  74  Mo.  App.  339;  Snyder  v.  Hopkins,  31 
Kan.  557,  3  Pac.  367;  Hamilton  v.  Brent  Lumber  Co.,  127  Ala.  78, 
28  South.  698;  Bettman  v.  Harness,  42  W.  Va.  433,  26  S.  E.  271,  36 
L.  E.  A.  566;  Gaines  v.  Leslie,  1  Ind.  Ter.  546,  37  S.  W.  947;  Woods 
V.  Riley,  72  Miss.  73,  18  South.  384  (overruling  earlier  Mississippi 
cases,  contra);  Lanier  v.  Alison,  31  Fed.  100;  Waterloo  Co.  v.  Doe, 
82  Fed.  45,  27  C.  C.  A.  50;  King  v,  Campbell,  85  Fed.  814;  Northerfl 
Pac.  Co.  V.  Soderberg,  86  Fed.  49;  Wadsworth  v.  Goree,  96  Ala.  227, 
10  South.  848;  Heinze  v.  Butte  etc.  Co.,  20  Mont.  528,  52  Pac.  273; 
McBrayer  v.  Hardin,  7  Ired.  Eq.  1,  53  Am.  Dec.  389;  Bishop  v.  Bais- 
ley,  28  Or.  120,  41  Pac.  936.. 

".'>  Duvall  V.  Waters,  1  Bland  Ch.  (Md.)  569,  18  Am.  Dec.  350, 
361. 


§  504  EQUITABLE  REMEDIES.  844 

such  an  injunction  could  only  operate  temporarily  and 
partially  to  the  prejudice  of  the  free  exercise  of  his 
right  of  property.  But  on  the  other  hand,  if  it  should 
be  eventually  shown  that  the  plaintiff  had  the  title, 
then,  as  the  injunction  turns  no  one  out  of  possession 
nor  displaces  anything,  it  must  necessarily  leave  to  the 
defendant  the  advantage  of  fighting  the  plaintiff  with 
his  own  property.  Upon  which,  had  not  the  injunc- 
tion been  granted,  the  most  irretrievable  destruction 
might  have  been  perpetrated;  acts  of  waste  might  have 
been  committed  which  would  deprive  the  plaintiff  of 
the  very  substance  of  his  inheritance,  mischief  might 
have  been  done  which  it  would  require  years  to  repair j 
and  things  might  have  been  torn  away  or  destroyed 
which  it  would  be  difficult  or  impossible  to  restore  in 
kind,  such  as  the  building,  fixtures,  trees,  or  other  pecu- 
liarities about  the  estate,  which  a  multitude  of  asso- 
ciated recollections  had  rendered  precious  to  their 
owner;  but  as  compensation  for  the  loss  of  which,  a 
jury  would  not  give  one  cent  beyond  their  mere  value." 

§  504.  Defendant  not  Enjoined  from  Mere  Use. — It  is 
not  to  be  inferred  from  the  above  that  the  courts  which 
have  gone  thus  far  are  at  all  hasty,  or  even  ready,  to 
enjoin  one  in  possession  claiming  title.  It  has  already 
been  pointed  out  that  the  injunction  granted  is  a  tem- 
porary one,  subject  to  all  the  restraints  which  the 
courts  always  throw  about  this  exercise  of  "the  strong 
arm  of  equity."  It  is  only  acts  for  which  there  is  no 
adequate  legal  remedy  that  will  be  thus  enjoined. 
Hence,  the  courts  never  enjoin  a  defendant  in  posses- 
sion from  mere  use  of  the  premises.^*'  "Pending  an  ac- 
tion for  the  possession,  while  the  title  is  disputed  and 

«0  Borlwell  V.  Crawford,  26  Kan.  292,  40  Am.    Eep.    306;     Snyder 
V.  Hnplnris.  31  Knn.  Rn7,  3  Pac.  367;  Booher  v.  BroTvninsr,  169  Pa.  "^ 
18,  32  Atl.  S.'^;  W;i.1<]ingham  v.  Eobledo,  6  N.  Mex.  347.  22  tac.  ooo; 


845  INJUNCTIONS  AGAINST  TRESPASS.  S  504 

undetermined  by  a  judgment  at  law,  equity  ought  not 
ro  interfere  to  restrain  the  defendant  from  continuing 
the  possession,  from  the  ordinary  and  natural  use  of 
the  premises,  and  the  enjoyment  of  all  benefits  which 
floAv  from  possession.  If  the  premises  be  a  farm,  the 
defendant  should  not  be  restrained  from  cultivating 
the  land  and  enjoying  all  the  benefits  which  flow  from 
tlie  natural  and  ordinary  use  of  a  farm  as  a  farm.  To 
tills  end  he  should  be  permitted  to  sow  and  gather  any 
ordinary  crop  upon  the  cultivated  ground.  He  should 
be  permitted  to  put  up  any  temporary  sbeds  or  other 
buildings  necessary  for  the  protection  of  his  stock  or 
the  preservation  of  his  crops.  He  should  be  permitted 
to  use  all  the  usual  agricultural  implements  in  the  cul- 
tivation of  the  broken  land,  not  merely  in  the  harvest- 
ing of  crops  as  seems  to  be  indicated  by  the  restraining 
order,  but  also  in  planting  and  cultivation.  He  should 
be  at  liberty  to  pasture  bis  stock  on  the  grass  lands,  pro- 
viding, at  least,  he  has  no  more  stock  than  is  ordinarily 
raised  and  kept  on  such  a  farm.  In  short,  he  should  be 
permitted  to  use  the  farm  in  any  ordinary  way,  as  such 
a  farm  is  used,  with  the  single  limitation  that  he  com- 
mit no  waste,  and  make  no  substantial  and  injurious 
change  in  its  condition."*'^  And  in  the  determination  of 
what  is  such  use,  the  courts  of  a  particular  jurisdiction 
will,  of  course,  act  consistently  with  their  own  holding 
as  to  what  constitutes  irreparable  injury;  hence,  acts 
may  in  one  jurisdiction  be  permitted  as  mere  ordinary 
use  which,  in  others,  would  be  enjoined  as  destruction.^^ 

Duvall  V.  Waters,  1  Bland  Ch.  (Md.)  569,  18  Am,  Dec.  350;  Gause 
V.  Perkins,  3  Jones  Eq.  (56  N,  C.)  177,  69  Am.  Dec.  728;  Carney  v. 
Hadley,  32  Fla.  344,  37  Am,  St.  Eep,  101,  14  South.  4,  22  L.  R.  A. 
233. 

«l  Snyder  v,  Hopkins,  31  Kan.  557,  3  Pac,  367,  per  Brewer,  J. 

B2  See  Gause  v.  Perkins,  3  Jones  Eq.  (56  N.  C.)  177,  69  Am.  Dec. 
728;   Sharpe  v.  Loane,  124  N,  C,  1,  32  S.  E.  318. 


§  503  EQUITABLE  REMEDIEa  SIS 

§  505.  Plaintiff  in  Possession. — In  view  of  what  lias 
been  said  above,  and  of  the  state  of  authoritj^  on  the 
question  of  grantino;  a  temporary  injunction  against  a 
defendant  in  possession  claiming  title,  no  argument  or 
discussion  will  be  necessary  to  show  that  when  the 
plaintiff  is  in  possession  claiming  title,  he  should  be 
granted  a  temporary  injunction,  pending  the  litigation 
over  title,  against  all  trespasses,  such  that,  from  their 
nature  or  the  surrounding  circumstances  (as,  for  ex- 
ample, the  defendant's  insolvency)  he  cannot  have  an 
adequate  legal  remedy  for  them.  And  this  is  the  al- 
most unanimous  holding  of  the  courts,^^  though  there 
is  an  occasional  intimation  that  the  mere  existence  of  a 
dispute  as  to  title  is  of  itself,  regardless  of  the  state  of 
possession,  enough  to  preclude  the  granting  of  any  in- 
junction, temporary  or  permanent.^* 

63  Santee  etc.  Co.  v.  James,  50  Fed.  360;  Chapman  v.  Toy  Long, 
4  Saw.  28,  Fed.  Cas.  No.  2610;  Thomas  v.  Nantahala  etc.  Co.,  8  U.  S. 
App.  429,  58  Fed.  485,  7  G.  C.  A.  330;  Pittsburg  etc.  Co.  v.  Fiske, 
123  Fed.  760;  Lyon  v.  Hunt,  11  Ala.  29o,  46  Am.  Dec.  216;  More 
V.  Massini,  32  Cal.  590;  Merced  Min.  Co.  v.  Fremont,  7  Cal.  317,  68 
Am.  Dec.  262;  Thigpen  v.  Aldridge,  92  Ga.  563,  17  S.  E.  860;  Eng- 
lish V.  James,  108  Ga.  123,  34  S.  E.  122;  Staples  v.  Eossi,  7  Idaho, 
618,  65  Pac.  67;  Long  v.  Casebeer,  28  Kan.  226;  Peak  v.  Hayden,  3 
Bush  (Ky.),  125;  Scully  v.  Eose,  61  Md.  408;  Clayton  v.  Shoemaker, 
67  Md.  216,  9  Atl.  635;  Butman  v.  James,  34  Minn.  547,  27  N.  W. 
66;  Kyle  v.  Ehodes,  71  Miss.  487,  15  South.  40;  Echelkamp  v.  Schra- 
der,  45  Mo.  505;  Lee  v.  Watson,  15  Mont.  228,  38  Pac.  1077;  South- 
mayd  v.  McLaughlin,  24  N.  J.  Eq.  181;  Piper  v.  Piper,  38  N.  J.  Eq. 
81;  Manning  v.  Ogden,  70  Hun,  399,  24  N.  Y.  Supp.  70;  Mendenhali 
V.  Harrisburgh  etc  Co.,  27  Or.  38,  39  Pac.  399;  Allen  v.  Dunlap,  24 
Or.  229,  33  Pac.  675;  Westmoreland  etc.  Co.  v.  De  Witt,  130  Pa.  St. 
235,  18  Atl.  724,  5  L.  E.  A.  731. 

64  Wilson  V.  City  of  Mineral  Point,  39  Wis.  160;  Woodford  v. 
Alexander,  35  Fla,  333,  17  South.  658;  Brown  v.  Solary,  37  Fla.  102, 
19  South.  161;  Citizens'  etc.  Co.  v.  Camden  etc.  Co.,  29  N.  J.  Eq.  (2 
Stew.)  299;  National  etc.  Co.  v.  Central  etc.  Co.  of  N.  J.,  32  N.  J. 
Eq.  755,  767;  Hacker  v.  Barton,  84  HI.  313.  It  should  be  noticed 
in  this  connection  that  the  question  here  presented  is  differr-nt  from 
that  involved  in  cases  in  which  the  sole  basis  of  equity's  intervention 


847  liN  JUNCTIONS  AGAINST  TRESPASS.  §  506 

§  506.  Establishment  of  Title.— The  following  lan- 
guage of  the  court  in  a  leading  American  case^^  is  often 
quoted:  "Two  conditions  must  concur  to  give  [equity] 
jurisdiction  [over  trespasses] — the  plaintiffs  title  must 
be  admitted,  or  be  established  by  a  legal  adjudication, 
and  the  threatened  injury  must  be  of  such  a  nature  as 
will  cause  irreparable  damage."  This  language  was 
used  by  the  court  in  speaking  of  the  granting  of  a  per- 
manent injunction  (a  fact  not  always  noticed  in  quot- 
ing it)  and  from  what  has  been  said  it  follows  that  in 
this  connection  only  is  it  true,  and  that  it  is  to  be  so 
confined  in  its  application.^^  The  suggestion  of  the 
court  that  the  establishment  of  plaintiff's  title  must 
take  place  at  law  is  not  necessarily  true,  however.  The 
general  principle  of  equity,  that  having  taken  jurisdic- 
tion of  a  cause  for  one  purpose  it  will  retain  it  and  give 
complete  relief,  makes  it  a  proper  proceeding  for  courts 
of  equity,  if  they  see  fit,  to  investigate  the  title  them- 
selves at  the  hearing  of  the  same  suit  in  which  the  tem- 
porary injunction  is  granted,  and  then  make  permanent 
or  dissolve  the  temporary  injunction  according  to  the 

is  the  prevention  of  multiplicity  of  suits  caused  by  one  defendant 's 
repeated  or  continuing  trespass.  In  such  cases,  as  has  been  already 
pointed  out  (ojtfe,  §  496,  at  note  54),  a  temporary  injunction  should  not 
be  granted;  what  plaintiff  seeks,  and  all  he  is  entitled  to,  is  a  perma- 
nent injunction  to  save  him  the  annoyance  and  expense  of  frequent 
suits  at  law.  Hence  it  is  very  proper,  if  his  title  is  in  doubt,  to  re- 
quire that  he  establish  it  before  he  is  given  an  injunction,  althou':'h 
it  would  seem,  on  principle,  to  be  a  matter  of  discretion,  even  in  that 
class  of  cases,  whether  to  require  that  the  disputed  title  be  settled 
at  law  or  by  the  court  of  equity  itself.  See  1  Pom.  Eq.  Jur.,  §  25'2; 
Wheelock  v,  Noonan,  108  N.  Y.  179,  2  Am.  St.  Eep.  405,  15  N.  E.  67, 
affirming  53  N.  Y.  Super.  Ct.  (21  Jones  &  S.)  286. 

65  Gause  v.  Perkins,  3  Jones  Eq.  (56  N.  C.)  177,  69  Am.  Dec.  728, 
per  Pearson,  J. 

66  For  a  statement  which  makes  this  limitation  see  Norton  v.  El- 

wert,  29  Or.  583,  41  Pac.  926. 


i  506  EQUITABLE  EEMEDIES.  848 

result  of  the  inquiry.^^  Courts  of  equity,  however, 
more  usually  send  the  question  to  be  tried  at  law,  but 
this  is  from  reasons  of  policy  rather  than  of  jurisdic- 
tion.^8  If  the  plaintiffs  title  is  clear,  though  denied 
by  the  defendant,  a  permanent  injunction  may  issue  at 
once.^'  If  the  court  decides  to  have  the  question  tried 
at  law  it  may  procure  diligence  in  the  prosecution  of 
the  ejectment  suit  by  framing  an  issue  as  an  incident  to 
its  own  proceedings  and  sending  the  parties  to  law  with 
it  f^  or  by  granting  the  temporary  injunction  to  a  plain- 
tiff out  of  i^ossession  on  terms>  that  the  injunction  sliail 
continue  only  if  he  begins  and  prosecutes  his  action  of 
ejectment  with  diligence;"^  or,  if  the  defendant  is  the 
party  out  of  possession,  and  therefore  the  i^roper  per- 
son to  bring  ejectment,  by  a  provision  that  the  injunc- 

57  "When  there  is  irreparable  damage,  injunction  lies,  though 
there  be  confiicting  title And  equzty,  having  once  taken  juris- 
diction, will  go  ou  to  do  co:i;plcte  j'/stice,  though  in  so  doing  it 
have  to  try  title,  and  adiiiinister  remedies  which  properly  pertain 
to  courts  of  law":  Bettman  v.  Harnesf/,  42  W,  Va,  433,  26  S.  E.  271, 
36  L.  E.  A.  566.  Other  cases  to  the  same  effect  are,  City  of  Peoria 
V,  Johnston,  56  111.  45;  Griffith  v.  Hilliard,  64  Vt.  643,  25  Atl.  427; 
Stetson  V.  elevens,  64  Vt.  649,  25  Atl.  429;  Coppage  v.  Griffith,  19 
Ky.  Law  Eep.  459,  40  S.  W.  908;  Shirley  v.  Hicks,  110  Ga.  516,  35 
S.  E.  782;  West  etc.  Co,  v.  Eeymert,  43  N.  Y.  703;  Broiestedt  v.  South 
Side  Co.,  55  N.  Y.  220;  McLaughlin  v.  Kelly,  22  Cal,  212;  Jennings 
etc.  Co.  V.  Beale,  158  Pa.  St.  283,  27  Atl.  948;  Haskell  v.  Sutton,  53 
W.  Va.  206,  44  S.  E,  533.  Contra,  Freer  v.  Davis,  52  W.  Va.  1,  94  Am. 
St.  Eep.  895,  43  S.  E.  164,  59  L.  E.  A.  556.  For  an  analytical  note 
with  further  cases,  see  1  Ames,  Cases  in  Eq.  Juris.,  515. 

68  Pom.  Eq.  Jur.,  §  252.  These  reasons  seem  to  be  two:  1.  The  de- 
sire to  preserve  to  the  parties  the  right  to  a  jury  trial;  2.  The  tra- 
ditional reluctance  of  equity  courts  to  extend  their  jurisdiction  over 
the  field  already  occupied  by  the  law  courts. 

69  Carpenter  v.  Grisham,  59  J'o.  247;  Miller  v.  Lynch,  149  Pa.  St. 
460,  24  Atl.  80. 

70  Harris  v.  Thomas,  1  Hen.  &  M.  (Va.)  18;  Santee  etc.  Co.  v. 
James,  50  Fed.  360. 

71  Johnson  v.  Hughes,  58  N.  J.  Eq.  406,  43  Atl.  901. 


849  INJUNCTIONS  AGAINST  TEESPASS.  §  507 

(ion  shall  be  made  permanent  if  he  fail  to  do  this  within 
a  reasonable  time.'^^ 

§  507.  Possession,  When  Given  by  Injunction. — The  ques- 
tion has  not  infrequently  come  before  the  courts  just 
how  much  relief,  if  any,  is  to  be  given  a  plaintiff  out 
of  possession  against  a  defendant  in  possession.  It  has 
been  shown  that  if  the  defendant  is  engaged  in  acts  of 
a  kind  proper  to  invoke  equity's  preventive  power 
against,  he  will  be  enjoined  even  when  he  claims  title; 
a  fortiori  it  is  clear  that  the  same  thing  should  be  true 
if  he  is  admittedly  a  trespasser,  and  such  is  the  law."^^ 
Hut  in  general  this  is  the  only  relief  that  equity  will 
give  in  such  a  case.  The  further  relief  which  the  plain- 
tiff may  desire  is  usually  possession  of  the  land.  If 
this  is  asked  for  as  part  of  the  prayer  of  a  bill  for  an 
injunction,  it  would  be  consistent  with  the  general  equi- 
table rule  of  giving  complete  relief  to  award  possession 
to  the  plaintiff  in  such  a  case.  This  course  seems  to  be 
almost  never  followed,"*  but  instead  the  plaintiff  must 
bring  his  action  of  ejectment  at  law.  If  possession 
alone  is  what  plaintiff  desires,  he  can  get  no  relief  in 
equity,  because  the  legal  remedy  afforded  by  an  action 
of  ejectment  or  of  forcible  entry  and  detainer  is  ade- 
quate for  the  specific  relief  desired.^^     And  this  is  no 

72  Echelkamp  v.  Scbrader,  45  Mo.  505. 

73  Brown  v,  Solary,  37  Fla.  102,  19  South.  161;  Hall  v.  Nester, 
122  Mich.  141,  80  N.  W.  982;  Webster  v.  Cooke,  23  Kan.  637;  Turner 
V.  Stewart,  78  Mo.  480. 

74  It  was  adopted  in  Bussier  v.  Weekey,  11  Pa.  Super.  Ct.  463, 
citing  McGowin  v.  Eemington,  12  Pa.  St.  56,  51  Am.  Dec.  584,  and 
Nutbrown  v.  Thornton,  10  Ves.  159.  See  Lattin  v.  McCarty,  41  N. 
Y.  107,  in  which  possession  was  awarded  in  the  same  suit  in  which 
a  deed  was  vacated. 

75  Tawas  B.  etc.  E.  E.  Co.  v.  Tosco  Cir.  Judge,  44  Mich.  479,  7  N. 
W.  65;  Calvert  v.  State,  34  Neb.  616,  52  N.  W.  687;  Coalter  v.  Himter, 
4  Eand.    (Va.)    58,   15   Am.      Dec.   7-6;    Brocken   v.   Preston,   1   Pino. 

Equitable  Eeniedies,  Vol.  I — 54 


§  507  EQUITABLE  KEMEDIES.  850 

less  true,  though  the  defendant  is  insolvent,'^^  or  though 
plaintiff,  if  he  had  brought  his  bill  sooner,  might  have 
secured  an  injunction  against  the  destructive  acts 
which  accomijanied  the  taking  of  possession  by  the  de- 
fendant."^ Beyond  the  fact  that  the  legal  remedy  is 
adequate,  a  further  reason  against  transferring  posses- 
sion by  injunction,  when  that  is  the  only  relief  given, 
in  this  country  is  that  it  deprives  the  defendant  of  jury 
trial,  and  so  is  unconstitutional;'^  and  if  the  transfer 
is  sought  by  a  temporary  injunction,  an  additional  rea- 
son against  it  is  that  this  is  an  attempt  to  use  a  tem- 
porary injunction  for  the  purpose  of  changing  the 
status  quo,  whereas  its  more  usual  and  proper  function 
is  to  preserve  the  status  quoJ^ 

But  though  the  rule  is  general  that  possession  will 
not  be  granted  by  injunction,  it  is  subject  to  exceptions 
which  exist  because  legal  remedies  in  the  particular 
cases  fail  or  become  insuHicient.  fcjo,  if  the  plaintiff's 
estate  is  purely  equitable,  and  thus  legal  remedies  are 
not  open  to  him,  he  may  be  put  in  possession  by  a  man- 
datory injunction.'^'^     it  has  also  been  frequently  held 

(Wis.)  584,  44  Am.  Dec.  412;  Fredericks  v.  Huber,  180  Pa.  St.  572, 
37  Atl.  90;  Loweuthal  v.  New  Music  Hall  Co.,  100  III.  App.  274;  Lock- 
hart  V.  Leeds,  10  N.  Mex.  568,  63  Pac.  48;  In  re  Black  Point  iSyntli- 
cate,  79  L.  T.,  N.  S.,  658;  Catholic  etc.  Co.  v.  Ferguson,  7  S.  D.  503, 
64  N.  W.  539;  Wehmer  v.  Fokenga,  57  Neb.  510,  78  N.  W,  28. 

76  Warlier  v.  Williams,  53  Neb.  143,  73  N.  W.  539;  Gillick  v. 
Williams,  33  Neb.  146,  73  N.  W.  540. 

77  Deere  v.  Guest,  1  Mylne    &  C.  516. 

78  Trustees  etc.  of  Florida  v.  Gleason,  39  Fla.  771,  23  South.  539; 
State  ex  rel.  Eeynolds  v.  Graves,  66  Neb.  17,  92  N.  W.  144;  Formau 
V.  Healoy,  11  N.  D.  563,  93  N.  W.  866. 

79  Dickson  v.  Dews,  11  N.  D.  404,  92  N.  W.  797;  San  Antonio  etc. 
Co.  V.  Bodenhamer  etc.  Co.,  133  Cal.  248,  65  Pac.  471.     This  reason  is 
not  conclusive,  however,  as  shown  by  the  fact  that  mandatory  tem- 
porary injunctions  are  not  at  all  unknown  to  the  law.     See  "Tempo- 
rary Injunctions,"  infra,  in  chapters  on  Nuisance  and  Easements. 

80  Pokegama  etc.  Co.  v.  Klamath  Eiver  etc.  Co.,  86  Fed.  528;  s.  c. 
J)6  Fed.  34,  55,  56;  Eichter  v.  Kabat,  114  Mich.  575,  72  N.  W.  600. 


851  INJUNCTIONS  AGAINST  TEESPASS.  §  507 

that  one  who  has  begun  the  process  of  acquiring  title 
to  public  land  according  to  the  prescribed  rules,  but 
who  has  not  yet  acquired  a  title  such  that  he  can  ade- 
quately enforce  and  protect  his  right  to  possession  by 
legal  remedies,  may  procure  the  possession  to  which  he 
is  entitled  by  injunction  ;^^  but  his  right  to  get  an  in- 
junction ceases  as  soon  as  he  has  progressed  far  enough 
in  acquiring  title  so  that  he  can  maintain  ejectment.^^ 
Another  class  of  cases  which  has  frequently  led  to  a 
restoration  of  possession  by  injunction  is  that  in  which 
the  defendant  has  erected  a  building  which  encroaches 
on  the  plaintiff's  land.  In  such  a  case,  three  remedies 
are  open  to  him.  First,  he  may  remove  the  building 
as  far  as  it  encroaches  over  the  line,  and  then  sue  the 
defendant  for  the  expense  incurred,  a  remedy  which  is 
inadequate  because  it  compels  him  to  undo  the  wrong 
of  another,  because  it  compels  him  to  advance  the  cost 
of  men  and  machinery  to  effect  the  removal  and  take 
the  risk  of  securing  reimbursement  from  the  defend- 
ant,^^ and  because  it  burdens  him  with  the  risk  of  in- 
jury to  other  portions  of  defendant's  building  not  in- 
cluded within  the  encroaching  part.^^  Second,  he  may 
submit  to  the  trespass  and  seek  relief  by  actions  for 
damages  at  intervals  of  time,  a  remedy  the  inadequacy 

81  Sproat  V.  Durland,  2  Okla,  24,  35  Pac.  682,  8&G;  Woodruff  v. 
Wallace,  3  Okla.  355,  41  Pac.  357;  Laughlin  v.  Fariss,  7  Okla.  1, 
50  Pac.  254,  256;  West  Coast  Imp.  Co,  v.  Winsor,  8  Wash.  490,  36 
Pac.  441;  Lee  v.  Watson,  15  Mont.  228,  38  Pac.  1077;  Jackson  v. 
Jackson,  17  Or.  110,  19  Pac,  847. 

8S  Laughlin  v.  Fariss,  7  Okla.  1,  50  Pac.  254;  Black  v.  Jackson, 
177  U.  S.  349,  20  Sup.  Ct.  648,  44  L.  ed.  801,  reversing  6  Okla.  751, 
52  Pac.  406;  Potts  v.  Hollen,  177  U.  S.  365,  20  Sup.  Ct.  654,  44  L. 
e.l.  808,  reversing  6  Okla.  696,  52  Pac.  917;  Harris  v,  McClung,  10 
Okla.  701,  64  Pac.  4. 

83  Wheelock  v.  Noonan,  108  N.  Y.  179,  2  Am.  St.  Rep.  405,  15 
N,  E.  67,  affirming  53  N.  Y.  Super.  Ct,   (21  Jones  &  S.)   286. 

81  See  Baron  v.  Kom,  127  N.  T.  224,  27  N.  E.  804. 


§  5U8  EQUITABLE  EEMEDIES,  852 

of  which  is  attested  by  the  whole  doctrine  of  injunc- 
tion to  prevent  multiplicity  of  suits.  Third,  he  may 
bring  an  action  of  ejectment,  the  judgment  in  wliich 
puts  upon  the  sheriff  in  executing  it  the  risk  of  injuring 
more  of  the  building  than  is  trespassing,  so  that  this 
remedy,  too,  is  an  impracticable  one.^^  On  the  otlier 
hand,  the  remedy  by  injunction  ftlaces  the  obligation  to 
remove  directly  on  the  one  who  caused  the  structure  to 
be  erected.  Hence,  equity  usually  grants  an  injunction 
in  such  cases,  and  thus  as  a  part  of  its  relief  restores 
possession  of  land  to  the  owner.^^ 

§  508.  The  Balance  of  Injury.— The  state  of  facts  which 
has  just  been  considered  often  occurs  in  such  form  as 
to  raise  another  question  which  courts  of  equity  have 
had  some  diflQculty  in  answering.  If  a  defendant's 
building  encroaches  slightly  on  the  plaintiff's  land  and 
the  plaintiff's  damage  is  small,  while  the  cost  to  the  de- 
fendant of  removing  it  is  great,  should  a  court  of  equity 
disregard  wholly  the  injury  which  granting  relief  to 
the  plaintiff  will  cause  the  defendant,  and  issue  the 
injunction?  Or,  should  it  balance  the  injury  which  its 
course  will  cause  in  granting  or  in  withholding  relief. 
and  be  influenced  by  this  consideration  in  its  decision.' 
A  further  element  is  sometimes  introduced  into  tlu? 
case  by  the  fact  that  the  defendant  is  engaged  in  a  busi- 

85  Hahl  V.  Sugo,  27  Misc.  Kep.  1,  57  N.  Y.  Supp.  920,  affirmed  in 
46  App.  Div.  632,  61   N.  Y.  Supp.   770. 

86  Baron  v.  Korn,  127  N.  Y.  224;  Norton  v.  Elwert,  29  Or.  5S3, 
41  Pac.  926;  Long  v.  Ragan,  94  Md.  462,  51  Atl.  181;  Pile  v.  Ped- 
rick,  167  Pa.  St.  296,  46  Am.  St.  Rep.  677,  31  Atl.  646,  36  Wkly. 
Not.  Cas.  224;  Harrington  v.  McCarthy,  169  Mass.  492,  48  N.  E.  278; 
Proprietors  etc.  Wharf  v.  Proprietors  etc.  Wharf,  85  Me.  175.  27 
Atl.  93;  Ryan  v.  Schwartz,  94  Wis.  403,  69  N.  W.  178.  Contra,  Bots- 
fnrd  V.  Wallace,  72  Conn.  19.5,  44  Atl.  10;  Coast  Co.  v.  Mayor  etc. 
Spring  Lake,  56  N.  J.  Eq.  615,  51  L.  R.  A.  657,  36  Atl.  21;  Schuster 
V.  Myers,  148  Mo.  422,  50  S.  W.  103. 


853  INJUNCTIONS  AGAINST  TRESPASS.  S  508 

ness  which  serves  public  convenience,  and  thus  can 
plead  not  only  the  injury  to  himself,  but  also  to  the 
public,  as  a  reason  for  not  granting  the  injunction.  It 
should  be  premised  in  the  beginning  that  the  question 
cannot  arise  except  in  a  case  in  which  some  sufficient 
reason  for  equity  jurisdiction,  such  as  irreparable  in- 
jury or  the  prevention  of  a  multiplicity  of  suits,  exists ; 
in  other  cases,  the  injunction  will  be  refused  on  the 
simple  ground  that  the  legal  remedy  is  adequate.  It 
is  believed,  too,  that  the  question  of  the  convenience 
of  the  public  should  be  treated  as  immaterial,  though 
it  must  be  said  that  courts  have  sometimes  allowed 
their  decision  to  be  influenced  by  this  consideration.^'^ 
In  answer  to  the  suggestion  that  the  convenience  of  the 
public  should  be  taken  account  of  in  determining  the 
propriety  of  granting  an  injunction.  Lord  Selborne,  L. 
C,  replied :  "It  is  said  that  the  objection  of  the  plaintiff 
to  the  laying  of  these  pipes  is  an  unneighborly  thing, 
and  that  his  right  is  one  of  little  or  no  value,  and  one 
which  Parliament,  if  it  were  to  deal  with  the  question, 
might  possibly  disregard.  What  Parliament  might  do 
if  it  were  to  deal  with  the  question,  is,  I  apprehend, 
not  a  matter  for  our  consideration  now,  as  Parliament 
has  not  dealt  with  the  question.  Parliament  is,  no 
doubt,  at  liberty  to  take  a  higher  view  upon  a  balance 
struck  between  private  interests  and  public  interests 
than  this  court  can  take."^^     In  other  words,  so  far  as 

87  McElroy  v.  Kansas  City,  21  Fed.  261;  Eouse  v.  Martin,  75 
Ala.  510,  51  Am.  Rep.  463;  Fogarty  v.  City  of  Cincinnati,  7  Ohio 
N.  P.  100,  9  Ohio  St.  &  C.  P.  Dec.  753.  That  this  is  not  a  proper 
consideration  in  such  cases,  see  Goodson  v.  Richardson,  L.  E.  9  Ch. 
App.  221;  Attorney-General  v.  Council  etc.  of  Birmingham,  4  Kay 
&  J.  528,  538,  539;  Hinchman  v.  Horse  E.  E.  Co.,  2  C.  E.  Green 
(^\  J.),  75,  86  Am.  Dec.  252;  Canastota  Knife  Co.  v.  Isewington 
Tramway  Co.,  69  Conn.  146,  36  Atl.  1107;  Sammons  v.  City  of  Glov- 
ersville,  17  N.  Y.  Supp.  2S4,   286    (citing  authorities). 

88  Goodson  V.  Richardson,  L.  R.  9  Ch.  App.  221. 


§  508  EQUITABLE  REMEDIES.  854 

the  utility  to  the  public  is  made  the  basis  of  an  argu- 
ment, it  would  seem  to  be  simply  urging  the  propriety 
of  taking  private  property  for  public  use  without  the 
requisite  condemnation  proceedings^^ — the  unwise  pol- 
icy of  which  cannot  be  doubted. 

Assuming,  then,  that  the  only  question  before  the 
court  is  the  propriety  of  balancing  the  injury  that  may 
be  caused  to  the  parties  by  the  decree,  and  remember- 
ing that  the  question  does  not  arise  except  when  equity 
has  jurisdiction  of  the  case  because  the  plaintiff's  legal 
remedy  is  inadequate,  it  should  be  noted  that  to  deny 
the  injunction  is  (1)  "to  allow  the  wrong-doer  to  com- 
pel innocent  persons  to  sell  their  right  at  a  valua- 
tion,"^^ and  (2)  to  refuse  him  altogether  any  equitable 
relief  in  a  case  where,  on  the  ground  of  avoiding  mul- 
tiplicity of  suits  at  least,  he  is  clearly  within  one  of 
the  most  frequently  given  reasons  for  assuming  juris- 
diction, and  where,  also,  his  injury  may  be  irreparable. 
In  view  of  this  situation  it  is  clear  that  the  plaintiff's 
prayer  will  not  readily  be  denied,  and  it  can  safely  be 
said  that  the  argument  based  on  the  balance  of  injury 
to  the  defendant  will  be  availing  only  in  a  limited 
class  of  cases.  On  the  other  hand,  it  is  a  general  rule 
of  equity  not  to  exercise  its  extraordinary  jurisdiction 
when  it  will  operate  inequitably  and  oppressively.^^ 
The  problem  presented  is,  therefore,  to  strike  a  medium 
rule  between  these  principles  that,  as  fairly  as  may  be, 
will  do  justice.  The  courts  of  Massachusetts  and  New 
York  have  considered  the  question,  upon  various  states 
of  facts,  oftener  than  the  courts  of  any  other  juris- 
diction; and    acting    independently,  have    arrived    at 

89  Hinchman  v.  Horse  R.  E.  Co.,  2  C.  E.  Green  (N.  J.),  75,  86  Am. 
Dec.   252. 

90  Tucker    v.    Howard,    128    Mass.    361. 

»l  Starkie  v.  Eichmond,  155  Mass.  188,  29  N.  E.  770. 


855  INJUNCTIONS  AGAINST  TRESPASS.  S  508 

substantially  the  same  result.  That  result,  in  the 
words  of  the  Massachusetts  court,  is  as  follows  :^^ 
"Where,  by  an  innocent  mistake,  erections  have  been 
placed  a  little  upon  the  plaintiff's  land,  and  the  damage 
caused  to  the  defendant  by  the  removal  of  them  would 
be  greatly  disproportionate  to  the  injury  of  which  the 
plaintiff  complains,  the  court  will  not  order  their  re- 
moval, but  will  leave  the  plaintiff  to  his  remedy  at 
law."  The  language  of  the  New  York  court  is:^^  "It 
must  be  remembered  that  a  willful  trespasser  cannot 
in  this  way  acquire  an  inch  of  land,  because  the  manda- 
tory injunction  must  issue  as  to  him;  that  in  other  cases 
where  the  injury  to  the  plaintiff  is  irreparable  the 
mandatory  injunction  will  issue,  and  permanent  dam- 
ages will  not  be  awarded;  that  where  the  granting  of 
an  injunction  would  work  greater  damage  to  an  inno- 
cent defendant  than  the  injury  from  which  the  plaintiff 
prays  relief,  the  injunction  could  be  refused  absolutely, 
and  the  plaintiff  compelled  to  seek  his  remed}^  at  law." 
In  practice  these  rules  are  probably  almost  the  same,^^ 

92  Lynch  v.  Union  Institution  for  Savings,  159  Mass.  306,  34  N. 
E.  364,  20  L.  E.  A.  842.  Other  Massachusetts  cases  which  show  the 
development  and  working  of  the  rule  are  Tucker  v.  Howard,  128 
Mass.  361;  Brands  v,  Grace,  154  Mass.  210,  31  N.  E,  633;  Starkle  v. 
Eichmond,  155  Mass.  188,  29  N.  E.  770;  Lynch  v.  Union  Institution 
for  Savings,  158  Mass.  394,  33  N.  E.  603;  Boland  v.  St.  John's  Schools, 
163  Mass.  129,  39  N,  E.  1035;  Methodist  etc.  Society  v.  Akers,  167 
Mass.  500,  46  N.  E.  381;  Harrington  v.  McCarthy,  169  Mass.  492, 
48  N.  E.  278;  Cobb  v.  Massachusetts  Chem.  Co.,  179  Mass.  423,  60 
N.    E.    790. 

9:5  Goldbacher  v.  Eggers,  38  Misc.  Eep.  36,  76  N.  Y.  Supp.  881, 
886,  affirmed  in  84  N.  Y.  Supp.  1127.  .  See,  also,  Crocker  v.  Manhattan 
Life  Ins.  Co.,  61  App.  Div.  226,  70  N.  Y.  Supp.  492,  modifying  31 
Misc.  Eep.  687,  66  N.  Y.  Supp.  84;  Proskey  v.  Cumberland  Eealty 
Co.,  35  Misc.  Eep.  50,  70  N.  Y.  Supp.  1125. 

94  The  difference  between  the  two  rules,  if  any,  is  in  the  amount 
of  damage  to  the  plaintiff  which  the  court  will  balance  against  the 
greater  damage  to  the  defendant.  From  the  language  of  the  Massa- 
chusetts court,  "erections  have  been  placed  a  little  upon  the  plain- 


§  508  EQUITABLE  KEMEDIES.  850 

and  tliey  perhaps  represent  as  nearly  a  fair  resultant 
of  the  arguments  on  the  side  of  both  parties  as  can  be 
arrived  at.  Both  rules  protect  the  plaintiff  from  \ery 
serious  injury,  both  deny  any  protection  to  a  willful 
wrong-doer,  and  both,  as  far  as  possible,  refuse  to  apply 
the  remedy  of  mandatory  injunction  when  to  do  so 
would  be  oppressive  to  the  defendant.  Doubtless  they 
will  be  followed,  though  cases  can  be  found  which,  not 
including  the  elements  making  necessary  carefully 
qualified  statements,  contain  broad  dicta  that  the  bal- 
ance of  injury  will    or  will    not    be    considered.^^     It 

tiff's  land,"  it  would  seem  a  fair  inference  that  the  rule  would 
not  be  applied  against  a  plaintiff  whose  damage  was  at  all  serious, 
and  the  cases  that  so  far  have  arisen  bear  out  the  inference.  The 
New  York  rule  has  no  such  limitations  short  of  "irreparable"  in- 
jury to  the  plaintiff;  and  in  the  two  principal  New  York  cases  above 
cited  the  peruianent  damages  awarded  to  the  plaintiff  were  $G00 
and  $5,000  respectively.  The  explanation  of  this  difference,  if  it 
exists,  lies  in  the  fact  that  the  Massachusetts  courts  seem  to  adopt 
the  traditional  view  of  equity  courts  that  land  is  per  se  within  the 
protection  of  equity,  and  therefore  any  trespass  on  it  which  amounts 
to  a  confiscation  of  ever  so  small  a  portion  of  it  is  "irreparable" 
injury;  hence  the  rule  under  discussion  is  to  be  confined  within  the 
narrowest  compass.  On  the  other  hand,  it  is  evident  not  only  from 
the  statement  of  the  rule  above  quoted  but  also  from  other  por- 
tions of  the  opinion,  and  from  the  opinion  in  Crocker  v.  Manhattan 
Life  Ins.  Co.,  supra,  that  the  New  York  courts  do  not  regard  the 
plaintiff  as  entitled  to  come  into  equity  in  this  class  of  cases  on 
the  ground  of  irreparable  injury  at  all,  but  solely  on  the  ground  of 
preventing  multiplicity  of  suits;  hence  even  when  his  damages  are 
large  it  does  not  follow  that  he  is  "irreparably"  injured,  and 
therefore  the  question  is  simply  one  of  balancing  two  injuries,  neither 
of  which  is  irreparable,  between  two  innocent  parties.  The  ideal 
consideration  that  it  is  an  irreparable  injury  to  the  plaintiff  to  be 
deprived  of  his  property  without  his  consent  is,  of  course,  not  ad- 
mitted. 

95  That  the  balance  of  the  injury  is  to  be  given  weight:  McElroy 
V.  Kansas  City,  21  Fed.  257,  261;  FuUenwider  v.  Supreme  <"'ouncil 
etc.  League,  73  111.  A  pp.  321;  Wilcox  v.  Wheeler,  47  N.  H.  488; 
Scharr  v.  City  of  Camden  (N.  J.  Ch.),  49  Atl.  817;  Fisher  v.  Car- 
penter, G7  N.  H.  5G9,  39  Atl.  1018;  Edwards  v.  Allouez  Min.  Co.,  38 
Mich.  46,  31  Am.  Rep.  301.     That  the  balance  of  injury  is  not  to  ba 


857  INJUNCTIONS  AGAINST  TEESPASS.  §  509 

should  be  added  by  way  of  caution  that  the  foregoing 
discussion  applies  only  to  the  granting  of  permanent 
injunctions;  it  has  already  been  pointed  out  that  on  an 
application  for  a  temporary  injunction,  when  the  rights 
of  the  parties  are  undecided,  the  balance  of  injury  is  a 
controlling   consideration.®' 

§  5C9.  Personal  Eemedy  Open  to  Plaintiff. — In  a  number 
of  cases  a  plaintiff  has  sought  injunctions  against  tres- 
passes when  it  would  be  possible  for  him  by  his  own  per- 
sonal efforts  to  put  an  end  to  the  trespass,  and  thus 
render  the  legal  remedy  adequate.  In  the  leading  case 
in  which  the  question  was  considered,  the  defendant  had 
covered  a  lot  belonging  to  the  plaintiff  with  large  rocks, 
and  in  reply  to  the  argument  of  counsel  the  court 
said:^^  "It  is  now  said  that  the  remedy  was  at  law; 
that  the  owner  could  have  removed  the  stone  and  then 
recovered  of  the  defendant  for  the  expense  incurred. 
But  to  what  locality  could  the  owner  remove  them? 
He  could  not  put  them  in  the  street ;  the  defendant  pre- 
sumably had  no  vacant  lands  of  his  own  on  which  to 
throw  the  burden;  and  it  would  follow  that  the  owner 
would  be  obliged  to  hire  some  vacant  lot  or  place  of 
deposit,  become  responsible  for  the  rent,  and  advance 
the  cost  of  men  and  machinery  to  effect  the  removal.  If 
any  adjudication  can  be  found  throwing  such  burden 
upon  the  owner,  compelling  him  to  do  in  advance  for 
the  owner  what  the  latter  is  bound  to  do,  I  should  very 
much  doubt  its  authority.     On  the  contrary,   the  law 

considered:  Norton  v.  Elwert,  29  Or.  583,  41  Pac.  926;  Hennessy  v. 
Carniony,  50  N.  J.  Eq.  616,  25  Atl.  374  (case  of  nuisance,  but  the 
argument  is  none  the  less  in  point  here). 

96  Ante,  §  502. 

97  Per  Finch,  J.,  in  Wheeloek  v.  Noonan,  108  N.  T.  179,  2  Am. 
St.  Kep.  405,  15  N.  E.  67,  affirming  53  N.  Y.  Super.  Ct.  (21  Jones  & 
S.)   286. 


§  510  EQUITABLE  EEMEDIES.  858 

is  the  other  way.  And  all  the  cases  which  give  to  the 
injured  pai-ty  successive  actions  for  the  continuance  of 
the  wrong  are  inconsistent  with  the  idea  that  the  in- 
jured party  must  once  for  all  remove  it."  These  argu- 
ments are  not  easy  to  meet,  and  there  are  cases  in 
accord  with  its  suggestion  ;^^  on  the  other  hand,  there 
are  cases  in  which  the  burden  thrown  upon  the  plain- 
tiff in  putting  an  end  to  the  trespass  himself  would  not 
be  heavy,  and  in  which,  therefore,  the  injunction  has 
been  denied.®^  If,  however,  the  party  whose  land  is 
trespassed  upon  wishes  by  his  own  efforts  to  remove  the 
trespassing  object,  he  m.ay  of  course  do  so,  and  equity 
will  not  interfere  with  him.^*^** 

§  510.  Relief  Given. — A  brief  paragraph  may  perhaps 
properly  be  given  to  noting  the  relief  which  equity  gives 
in  such  cases  of  trespass  as  fall  within  its  jurisdiction. 
It  is,  of  course,  clear  that  the  only  ground  on  which  a 
case  of  trespass  can  be  brought  into  equity  is  the  plain- 
tiff's right  to  an  injunction,  and  this  is  therefore  the 
primary  relief  given  him.  It  is  usually  prohibitory, 
but  only  because  prohibitory  relief  is  more  often  de- 
sired. Despite  occasional  dicta  to  the  contrary,^"^  the 
use  of  mandatory  injunctions  is  well  established.     The 

98  Sylvester  v.  Jerome,  19  Colo.  128,  34  Pac.  760;  Kern  v.  Field, 
G8  Minn.  317,  64  Am.  St.  Eep.  479,  71  N.  W.  393.  See  Beach  v. 
Crane,  2  N.  Y.  86,  97,  49  Am.  Dec.  3G9. 

90  Indianajjolis  EoUing  Mill  Co.  v.  City  of  Indianapolis,  29  Ind. 
245;  Boyden  v.  Bragaw,  53  N.  J.  Eq.  (8  Dick.)  26,  30  Atl.  330;  Me- 
chanics' Foundry  of  San  Francisco  v.  Eyall,  75  Cal.  601,  17  Pac. 
703;  cf.  De  Groot  v.  Peters,  124  Cal.  406,  71  Am.  St.  Eep.  91,  57 
Pac.  209.  And  see  Eankin  v.  Charless,  19  Mo.  551,  61  Am.  Dec. 
574;  Avery  v.  Empire  Woolen  Co.,  82  N.  Y.  582. 

100  Lyle  v.  Little,  83  Hun,  532,  33  N.  Y.  Supp.  8;  Windfall  etc. 
Co.  V.  Terwillicer,  152  Ind.  364,  53  N.  E.  284;  De  Sale  v.  Millard, 
108  Mich.  581,  66  N.  W.  481. 

101  Way  Cross  etc.  Co.  v.  Southern  Pine  Co.,  Ill  Ga.  233,  36  S.  E. 
641;  Newlin     v.  Prevo,  81  111.  App.  75. 


859  INJUNCTIONS    AGAINST    TRESPASS.  §  510 

discnssion  of  the  questions  when  equity  will  put  a 
plaintiff  in  possession,  and  the  effect  of  the  balance  of 
injury  which  will  be  caused  by  granting  or  witlihold- 
inj4-  its  relief,  have  made  necessary  previous  citation  in 
this  chapter  of  numerous  cases  in  which  mandatory 
injunctions  were  issued.  A  few  others  are  collected  in 
the  note,^^2  in  some  of  which  the  court  went  the  length 
of  decreeing  not  only  the  undoing  of  wrongful  acts,  but 
also  the  doing  of  rightful  ones — not  merely  destructive, 
but  constructive  acts.^^^  Further,  the  general  prin- 
ciple of  equity  to  give  full  relief  in  a  cause  in  which  it 
has  jurisdiction  for  any  purpose  applies  in  case  of  tres- 
l>ass  as  well  as  elsewhere.  That  it  is  under  this  rule 
that  equity  acts  in  passing  on  disputed  titles  has  al- 
ready been  seen.^^^  On  the  same  principle  equity  gives 
damages  for  past  trespassing  in  addition  to  an  injunc- 
tion,^ <^-^  but  not  when  the  injunction  is  refused  for  want 
of  jurisdiction.^^^  Or  damages  only  may  be  given  when 
the  court  has  jurisdiction  of  the  cause,  but  finds  it  neces- 
Kiry  to  refuse  the  injunction  for  some  other  reason 
than  want  of  jurisdiction,  as,  for  example,  because  an 
injunction   would  be  futile.^^^     The  tiexibility   of  in- 

102  Crocker  v.  Manhattan  etc.  Co.,  61  App.  Div.  226,  70  N.  Y. 
Svjpp,  492,  modifying  31  Misc.  Eep,  687,  66  N.  Y.  Supp.  84;  Norton 
V.  Elwert,  29  Or.  583,  41  Pac.  926;  United  States  v.  Brighton  Eanche 
Co.,  26  Fed.  218;  Creely  v.  Bay  State  etc.  Co.,  103  Mass.  514;  Wil- 
marth  v.  Woodcock,  66  Mich.  331,  33  N.  W.  400;  Norwalk  Heating 
etc.  Co.  V.  Vernam,  75  Conn.  662,  96  Am.   St,  Rep.  246,  55  Atl.  168. 

103  Lake  Shore  etc.  Co.  v.  Wiley,  193  Pa.  St.  496,  44  Atl.  5S3; 
Bussier  v.  Weekey,  11  Pa.  Super.  Ct.  463. 

104  Ante,   §   506.     See,   also,  Kilgore  v.  Norman,   119  Fed.   1006. 

105  Morris  v.  Bean,  123  Fed.  618;  Bird  v.  Wilmington  etc.  Co., 
8  Rich.  Eq.  (S.  C.)  46,  64  Am.  Dec.  739;  Downing  v.  Dinwiddle,  132 
Mo.  92,  33  S.  W.  470;  Bishop  v.  Baisley,  28  Or.  119,  41  Pac.  936. 

100  Pres.  etc.  Baltimore  etc.  Road  v.  United  etc.  Co.,  93  Md.  138, 
48    Atl.    723. 

107  Lewis  V.  Town  of  N.  Kingston,  16  R.  I.  15,  27  Am.  St.  Rep. 
724,  11  Atl.  173;  Lane  v,  Michigan  Traction  Co.,  10  Det.  Leg.  News, 
685,  97  N.  W.  354. 


§  511  EQUITABLE  EEMEDIES.  860 

junctions  in  tlie  hands  of  tlie  courts  also  enaljles  them, 
by  simply  framing  the  decree  in  the  alternative,  to  ac- 
complish the  purpose  of  condemnation  proceedings  in 
cases  in  which  the  defendant  has  the  right  of  eminent 
domain,^*'^  or  to  give  permanent  damages  to  the  plain- 
tiff in  cases  in  which  at  law  he  could  recover  only  the 
damages  caused  him  up  to  the  date  of  the  suit.^"^ 

§  511.     Estoppel,     Laches,     Acquiescence The     general 

equitable  rules  as  to  estoppel,  laches  and  acquiescence 
also  apply  in  the  subject  of  this  chapter.  No  discussion 
of  these  rules  will  be  undertaken  here,  as  they  are 
treated  elsewhere;  a  few  cases  illustrating  their  applica- 
tion in  cases  of  trespass   are  collected  in  the  note.^^*^ 

108  Henderson  v.  New  York  Cent,  etc.  Co.,  78  N.  Y.  423;  Pappcn- 
heim  v.  Metropolitan  etc.  Co.,  128  N.  Y.  436,  26  Am.  St.  Eep.  486, 
28  N.  E.  518,  13  L.  E.  A.  401.     See  ante,  §§  473,  470. 

109  Crocker  v.  Manhattan  Ins.  Co.,  61  App.  Div.  226,  70  N.  Y. 
Supp.  492,  affirming  31  Misc.  Kep.  687,  66  N.  Y.  Supp.  84;  Goldbacher 
V.  Eggers,  38  Misc.  Eep.  36,  76  N.  Y.  Supp.  881;  affirmed  in  84 
N.  Y.  Supp.  1127. 

110  Estoppel.— City  of  New  York  v.  Pine,  1S5  U.  S.  93,  22  Sup. 
Ct.  592,  46  L.  ed.  820,  reversing  50  C.  C.  A.  145,  112  Fed.  98,  103 
Fed.  337;  Pennsylvania  E.  Co.  v.  Glenwood  etc.  Co.,  184  Pa.  St.  227, 
41  Wkly.  Not.  Cas.  441,  39  Atl.  80;  Bright  v.  Allan,  203  Pa.  St.  304, 
93  Am.  St.  Eep.  769,  53  Atl.  251. 

Laches. — Southard  v.  Morris  Canal  Co.,  1  N.  J.  Eq.  519;  Scudder 
V.  Trenton  etc.  Co.,  1  N.  J.  Eq.  694,  23  Am.  Dec.  756;  Becker  v. 
Lebanon  etc.  Co.,  188  Pa.  St.  484,  43  Wkly.  Not.  Cas.  (Pa.)  229,  41 
Atl.  612.     See,  also,  ante,  chapter  I. 

Acciuiescence.— Bassett  v.  Salisbury  etc.  Mills,  47  N.  H.  426;  Blanch- 
ard  V.  Doering,  23  Wis.  200. 


861  INJUNCTION  AGAINST  NUISANCE. 


CHAPTER  XXIV. 


INJUNCTION  AGAINST  NUISANCE. 

ANALYSIS. 

§  512.  Nature  of  the  jurisdiction. 

§  513.  When  the  legal  remedy  is  adequate. 

S§  514-517.  Extent  of  the  jurisdiction. 

§  514.  Irreparable  and  continuing  or  recurring  nuisances. 

§  515.  Illustrations. 

^  516.  Injunctions  on  sole  ground  of  preventing  multiplicitj 

of  suits. 

S  517.  Miscellaneous  grounds  of  jurisdiction. 

§  518.  What  the  plaintiff  must  allege. 

J  5  519-522.  Previous  trial  at  law. 

§  520.  Not  necessary  to  granting  of  temporary  injunctions. 

§  521.  Nor  in  all  cases  of  permanent  injunctions. 

§'  522.  Cases  in  which  it  is  important. 

fS  523-525.  Threatened  nuisance. 

§  523.  Imminent  danger. 

§'  524.  Illustrations. 

§  525.  Must  threatened  injury  be  irreparablet 

S  326.  Damage  necessary  to  justify  an  injunction. 

§  527.  Criminal  and  statutory  nuisances. 

§  528.  The  defendant's  motive. 

IS  529-531.  The  balance  of  injury. 

§  530.  Balance  between  private  parties. 

5'  531.  Balance  between  the  plaintiff  and  the  public, 

§  532.  Nuisance  easily  avoided  by  the  plaintiff. 

S§  533-336.  Belief  given. 

§  533.  Mandatory  injunctions. 

§  534.  Form  of  injunction. 

I  535.  Temporary   injunctions. 

§  536.  Complete  relief. 

S  537.  Estoppel,  acquiescence,  laelies. 

S  538.  Parties. 

J  539.  Beasonable  use  not  a  defense. 

i  540.  Nor  the  fact  that  other  causes  contribute^ 

§  541.  Legalized  nuisances. 

5  542.  Public  nuisances. 


g§  512,  513  EQUITABLE   EEMEDIES.  8G2 

§  512.  Nature  and  Extent  of  the  Jurisdiction. — The  terra 
"nuisance'^  has  in  equity  no  different  signification  from 
thiit  given  it  in  law.  Anything  which  is  a  nuisance  in 
law  is  also  a  nuisance  in  equity,  and,  on  the  other  hand, 
"it  is  true  that  equity  will  only  interfere,  in  case  of 
nuisance,  where  the  thing  complained  of  is  a  nuisance 
at  law:  there  is  no  such  thing  as  an  equitable  nui- 
sance."* This  is  not  saying  that  the  jurisdiction  of  law 
and  that  of  equity  are  co-extensive ;  it  is  simply  pointing 
out  that  equity  in  the  determination  of  what  constitutes 
a  nuisance  follows  the  law.^  Whether,  assuming  a  nui- 
sance to  exist,  equity  will  take  jurisdiction  to  enjoin  it, 
is  another  question,  a  question  which  is  answered  in 
every  particular  case  by  determining  whether  there  is 
a  need  of  equity  interposing;  whether,  in  the  usual 
phrase,  the  legal  remedy  is  adequate.  No  special  at- 
tention need,  therefore,  be  given  here  to  a  definition  of 
nuisance,  though  such  of  its  characteristics  as  affect 
the  equitable  remedy  will  be  spoken  of  in  connection 
with  those  features  of  the  equitable  remedy  to  which 
they  are  related. 

§  513.  "When  the  Legal  Eemedy  is  Adequate. — While  the 
jurisdiction  of  law  over  nuisance  and  that  of  equity 
are  not  co-extensive,  much  more  nearly  than  in  cases  of 
trespass  it  is  true  that  every  person  injured  by  a  nui- 
sance may  come  into  law  or  equity,  whichever  he  pre- 
fers, for  his  remedy.  The  reason  for  this  is,  that  from 
their  nature  and  effect,  most  nuisances  cannot  be  satis- 

1  Per  Kindcrsley,  V.  C,  in  Soltau  v.  De  Held,  2  Sim.,  N.  S.,  133 
151. 

2  Bairios  v.  Enker,  1  Amb.  158;  Wolcott  v.  Meliek,  11  N.  J.  Eq.  201, 
ec  Am.  Dec.  790;  Mississippi  etc.  Co.  v.  Ward,  67  U.  S.  (2  Black) 
4S5,  17  L.  ed.  311;  Brady  v.  Weeks,  3  Barb.  157;  Watson  v.  City  of 
Columbia,  77  Mo,  App.  267;  Northern  Pae.  E.  E.  Co.  v.  V/halen,  149 
U.  S.  157,  13  Slip.  Ct.  822,  37  L.  ed.  686. 


863  INJUNCTION  AGAINST  NUISANCE.  §  51d 

factorily  remedied  at  law.  The  grounds  on  which 
equity  enjoins  nuisances  are  chiefly  two,  viz.,  irrepar 
able  injury  to  plaintiff,  and  the  prevention  of  multi- 
plicity of  suits.  Those  which  will  not  be  enjoined, 
therefore,  are  such  nuisances  only  as  do  not  fall  within 
either  of  the  above  classes.  But  this  necessarily  means 
a  comparatively  small  number  of  cases,  for  it  is  char- 
acteristic of  nuisances  in  general  that  they  are  either 
continuous  or  recurring,  or  else  they  cause  irreparable 
injury,  and  in  many  cases,  indeed,  they  are  of  a  char- 
acter to  bring  them  within  both  of  the  reasons  for 
equity's  intervention.  It  is  said  in  one  case :  "It  is  not 
in  every  case  of  nuisance  that  this  court  should  inter- 
fere. I  think  that  it  ought  not  to  do  so  in  cases  in 
which  the  injury  is  merely  temporary  and  trifling;  but 
I  think  that  it  ought  to  do  so  in  cases  in  which  the  in- 
jury is  permanent  and  serious."^  The  language  of  an- 
other court  is  that  nuisances  which  are  "temporary  and 
occasional  only,  are  not  grounds  for  the  interference  of 
this  court  by  injunction,  except  in  extreme  cases."* 
These  two  extracts  taken  together  probably  contain  a 
complete  statement  of  the  kinds  of  nuisances  for  which 
the  legal  remedy  is  considered  adequate.  They  are: 
(1)  Nuisances  which  are  temporary  and  single  and 
which  do  not  cause  irreparable  injury.  (2)  Nuisances 
which,  not  doing  irreparable  injury,  are  yet  repeated, 
but  only  occasionally,  not  so  often  that  the  suits  at  law 
to  redress  them  cause  a  vexatious  or  oppressive  amount 
of  litigation.^ 

3  Goldsmid  v.  Tunbridge  etc.  Commrs.,  L.  E.  1  Ch.  App.  349,  354, 
355. 

4  Swaine  v.  Great  Northern  Ey,  Co.,  4  De  Gex,  J.  &  S.  211,  216. 
"The  present  or  threatened  injury  must  be  real,  not  trifling,  tran- 
sient, or  temporary":  4  Pom.  Eq.  Jur.,  §  1350;  cited,  McLaughlin 
V.  Sandusky,  17  Neb.  110,  22  N.  W.  241. 

B  For  cases  of  this  kind,  see  Attorney-General  v.  Sheflield  Gas  etc. 


§  514  EQUITABLE  EEMEDIEb.  864 

§  514.  Extent  of  the  Jurisdiction;  Irreparable  and  Con- 
tinning  or  Recurring  Nuisances. — In  the  preceding  para- 
graph it  is  said  that  the  chief  forms  in  which  the  inade- 
quacy of  the  common  law — the  fundamental  basis  of 
all  equity  jurisdiction  over  torts — manifests  itself,  are 
cases  of  irreparable  injury,  and  cases  of  continuous  or 
repeated  nuisances  involving  a  multiplicity  of  suits  at 
law.®  These  two  gi-ounds  of  jurisdiction  do  not  read- 
ily, if  at  all,  admit  of  separate  treatment,  however. 
The  definitions  of  nuisance  very  generally  agree  in  in- 
cluding as  one  of  its  elements  that  it  is  something 
which  interferes  with  one's  comfort  in,  or  enjoyment  of, 
his  i)roperty,  and  it  is  the  loss  of  this  comfort  and  en- 
joyment in  the  use  of  his  property  which  gives  the  right 
of  action.     Now  "comfort"  and  "enjoyment"  are  almost 

Co.,  3  De  Gex,  M,  &  G.  304;  Blain  v.  Brady,  64  Md,  373,  1  Atl.  609; 
Bartlett  v.  Moyers,  88  Md,  715,  42  Atl.  204;  Harrison  v.  South wark 
etc.  Co.,  [1891]  2  Ch.  D.  409;  Peterson  v.  City  of  Santa  Kosa,  119 
Cal.  387,  51  Pac.  557;  Hagge  v.  Kansas  etc.  Co.,  104  Fed.  391;  Nel- 
son V.  Milligan,  151  lil.  462,  38  N.  W.  239;   Cooke  v,  Forbes,  L.  R. 

3  Eq.  166;  Mayor  etc.  Canton  v.  Canton  etc.  Warehouse  (Miss.),  36 
South.  266.  See,  also,  Dennia  v.  Mobile  etc.  Co.,  139  Ala.  109,  35 
South.  651;  Penn.  etc.  Co.  v.  City  of  Chicago,  181  111,  289,  54  N.  E. 
825,  53  L.  E.  A.  223. 

6  "Whenever  this  court  interferes  by  way  of  injunction  in  the 
shape  of  prevention  rather  than  allow  an  injury  to  be  inflicted,  it 
does  so  in  cases  where  the  act  complained  of  is  one  in  respect  of 
which  there  is  also  a  legal  remedy,  upon  two  grounds  (they  being  of 
a  totally  distinct  character) — first,  whore  the  injury  is  irreparal.le 
in  the  eye  of  this  court,  as  the  cutting  down  of  a  tree,  although  its 
value  may  be  paid  for;  and  secondly,  where  the  act  is  continuous,  and 
so  continuous  that  this  court  acting  on  the  same  principle  as  it  acted 
on  in  olden  times  with  reference  to  bills  of  peace  by  restraining 
actions  after  repeated  trials,  so  now  will  restrain  repeated  acts  which 
can  only  end  in  incessant  actions  being  brought,  will  restrain  them 
at  once  on  account  of  the  continuous  character  of  the  wrong,  which 
continuous  character  in  itself  makes  the  injury  to  be  grievous,  and 
So  far  in  the  eye  of  this  court,  irreparable":  Per  Wood,  L.  J.,  in 
Attorney-General  v.  Cambridge  etc.  Gas  Co.,  17  Week,  Kep.  145,  L.  R. 

4  Ch.  App.  71. 


865  INJUNCTION  AGAINST  NUISANCE.  §  514 

ideal  illustrations  of  the  sort  of  thing  for  the  permanent 
loss  of  which  damages  will  not  be  a  fair  or  just  com- 
pensation. They  are  not  to  be  paid  for  in  money. 
They  are  in  this  respect  essentially  of  the  same  char- 
acter as  the  pretium  affectionis  which  the  courts  some- 
times have  made  the  basis  for  decreeing  specific  per- 
formance of  contracts  to  sell  chattels,  or  for  injunctions 
against  trespasses  to  chattels.  Hence  it  follows  that 
most  nuisances  when  permanent,  or  when  continuing 
for  any  considerable  length  of  time,  or  when  frequently 
repeated,  are  properly  to  be  classed  as  irreparable  in 
their  nature.  Besides  this  feature  of  nuisance  (which 
pertains  only  to  its  effect  on  the  person  injured)  it  is 
to  be  remembered  that  the  property  affected  is  usually 
land,  which  is  regarded  as  peculiarly  within  the  pro- 
tection of  equity;  and  so  far  as  one's  enjoyment  of  his 
land  is  destroyed,  it  is  a  destruction,  if  not  physical, 
yet  at  least  in  the  character  in  which  it  has  been  held 
and  enjoyed,  of  what  is  generally  regarded  in  equity 
as  property  so  peculiar  as  not  properly  to  be  made  a 
subject  of  compensation  by  a  jury.  In  brief,  then,  a 
continuing  nuisance  is  in  general  an  irreparable  in- 
jury, for  two  distinct  reasons:  (1)  From  its  effect  on 
the  person  injured.  (2)  From  the  destructive  nature  of 
the  injury  to  the  use  of  property  of  a  peculiar  character.'^ 

7  The  argument  of  the  text  is  well  illustrated  by  the  facts  and 
the  language  of  the  court  in  Campbell  v.  Seaman,  63  N.  Y.  568,  20  Am. 
Eep.  567,  as  the  following  quotation  from  the  decision,  per  Earl,  J., 
will  show:  "The  plaintiffs  had  built  a  costly  mansion  and  had  laid 
out  their  grounds  and  planted  them  with  ornamental  and  useful  trees 
and  vines,  for  their  comfort  and  enjoyment.  How  can  one  be  com- 
pensated in  damages  for  the  destruction  of  his  ornamental  trees,  and 
the  flowers  and  vines  which  surround  his  homef  How  can  a  jury 
estimate  their  value  in  dollars  and  cents?  The  fact  that  trees  and 
vines  are  for  ornament  or  luxury  entitles  them  no  less  to  the  protec- 
tion of  the  law.  Every  one  has  the  right  to  surround  himself  with 
articles  of  luxury,  and  he  will  be  no  less  protected  than  one  who  pro- 
Equitable  Remedies,  VoL  I — 55 


§  514  EQUITABLE  EEMEDIES.  866 

But  in  both  the  above  reasons  the  fact  that  the  nuisance 
is  permanent  or  continuous  or  repeated  is  a  very  im- 
portant, if  not  essential,  element,  and,  as  most  nuisances 
are  permanent  or  continuous,  or  repeated,  this  fact  alone 
is  enough  to  bring  them  into  equity.  Hence  it  has  not 
been  necessary  for  the  courts  to  attempt  careful  defini- 
tions of  irreparable  injury  in  nuisance  cases,  as  a  more 
obvious  and  simple  ground  of  jurisdiction  is  usually 
ready  at  hand.  And  the  fact  that  the  studied  care  of 
the  meaning  of  the  term,  which  is  common  in  the  cases 
on  trespass,  is  largely  wanting  in  the  cases  on  nuisance, 
may  be  perhaps  thus  explained.*     This  may  also  ex- 

vides  himself  only  with  articles  of  necessity.  The  law  will  protect  a 
flower  or  a  vine  as  well  as  an  oak.  These  damages  are  irreparable, 
too,  because  the  trees  and  vines  cannot  be  replaced,  and  the  law 
will  not  compel  a  person  to  take  money  rather  than  the  objects  of 
beauty  and  utility  which  he  places  around  his  dwelling  to  gratify 
his  taste  or  to  promote  his  comfort  and  his  health. 

"Here  the  injunction  also  prevents  a  multiplicity  of  suits.  The 
injury  is  a  recurring  one,  and  every  time  the  poisonous  breath  from 
defendant's  brick-kiln  sweeps  over  plaintiff's  land  they  have  a  cause 
of  action.  Unless  the  nuisance  be  restrained  the  litigation  would  be 
interminable.  The  policy  of  the  la's*-  favors,  and  the  peace  and  gooil 
order  of  society  are  best  promotea  by  the  termination  of  such  litiga- 
tions by  a  single  suit. 

"The  fact  that  this  nuisance  is  not  continual,  and  that  the  in- 
jury is  only  occasional,  furnishes  no  answer  to  the  claim  for  an  in- 
junction. The  nuisance  has  occurred  often  enough  within  two  years 
to  do  the  plaintiffs  large  damage.  Every  time  a  kiln  is  burned  some 
injury  may  be  expected,  unless  the  wind  should  blow  the  poisonous 
gas  away  from  the  plaintiffs'  land.  Nuisances  causing  damage  less 
frequently  have  been  restrained." 

8  The  following  are  illustrations  of  the  rather  cursory  treatment 
given  to  the  definition  of  the  word  in  the  cases  on  nuisance:  "The 
foundation  of  this  jurisdiction,  interfering  by  injunction,  is  that  head 
of  mischief,  alluded  to  by  Lord  Hardwicke  (1  Dick.  164),  that  sort 
of  material  injury  to  the  comfort  of  the  existence  of  those  who  dwell 
in  the  neighboring  house,  requiring  the  application  of  a  power  to  pre- 
vent, as  well  as  remedy,  an  evil,  for  which  damncres,  more  or  less, 
would  be  given  in  an  action  at  law":  Per  Lord  Eldon  in  Attorney- 
Gftneral  v,  Nichol,  16  Ves.  338,  342.     "The  familiar  ground  on  which 


867  INJUNCTION  AGAINST  NUISANCE.  8  5U 

plain  the  frequent  practice  of  the  equity  courts  in  nui- 
sance cases  to  confine  their  attention  to  the  question  of 
fact  whether  a  nuisance  exists  or  not,  and  to  assume 
jurisdiction  as  a  matter  of  course.^     Both  of  the  above 

the  extraordinary  power  of  the  court  is  invoked  in  such  cases  is  that 
it  is  inequitable  and  unjust  that  the  injured  party  should  be  compelled 
to  resort  to  repeated  actions  at  law  to  recover  damages  for  his  injury, 
which,  after  all,  in  this  class  of  cases,  are  incapable  of  measurement": 
Per  Pitney,  V.  C,  in  Hennessy  v.  Carmony,  50  N.  J.  Eq.  616,  2b  Atl.  374, 
377,  378.  "There  are  many  injuries  which  in  the  very  nature  of  things 
cannot  be  repaired  by  any  money  consideration— such,  for  instance,  aa 
result  from  acts  which  outrage  the  feelings  and  wound  the  sensibili- 
ties, or  deprive  us  of  objects  of  affection,  and  of  things,  perhaps 
trivial  in  themselves,  but  of  inestimable  value  by  reason  solely  of 
being  associated  with  some  precious  memory  or  touching  incident  of 
our  lives;  or  it  may  be  that  the  maintenance  of  the  writ  was  re- 
quired to  preserve  to  us  our  homes,  and  to  establish  us  in  a  state  or 
condition  which,  lost  for  the  moment,  can  never  be  recovered  nor  the 
loss  atoned  for  by  money":  Crescent  City  etc.  Co.  v.  Police  Jury,  32 
La.  Ann.  1194,  quoted  with  approval  in  State  ex  rel.  Violett  v.  King, 
46  La.  Ann.  78,  14  South,  423,  425. 

9  Crump  V.  Lambert,  L.  E.  3  Eq.  409;  Proprietors  etc.  Wharf  v. 
Proprietors  etc.  Wharf,  85  Me.  175,  27  Atl.  93;  Hennessy  v.  Car- 
mony, 50  N.  J.  Eq.  616,  25  Atl.  374.  In  Crump  v.  Lambert,  Lord 
Eomilly,  M.  E.,  said:  "With  respect  to  the  question  of  law,  I  consider 
it  to  be  established  by  numerous  decisions  that  smoke,  unaccompanied 
with  noise  or  noxious  vapors,  that  noise  alone,  that  offensive  vapors 
alone,  although  not  injurious  to  health,  may  severally  constitute  an 
injury  to  the  owner  of  adjoining  or  neighboring  property;  that  if 
they  do  so,  substantial  damages  may  be  recovered  at  law,  and  that 
this  court,  if  applied  to,  will  restrain  the  continuance  of  the  nuisance 
by  injunction  in  all  cases  where  substantial  damages  could  be  re- 
covered at  law The  law    on  this  subject  is,. I  apprehend,  the 

same,  whether  it  be  enforced  by  action  at  law  or  by  bill  in  equitj'. 
In  any  case  where  a  plaintiff  could  obtain  substantial  damages  at  law, 
he  is    entitled    to  an    injunction  to    restrain    the    nuisance    in    this 

court The  real   question    in    all  the    cases  is    the  question  of 

fact,  viz.,  whether  the  nnnoyance  is  such  as  materially  to  interfere 
with  the  ordinary  comfort  of  human  existence."  In  Hennessy  v. 
Carmony,  the  court,  per  Pitney,  V.  C,  said:  "The  result  of  a  careful 
review  of  the  evidence  upon  my  mind  is  to  lead  me  to  the  conclusion 
that  the  degree  of  injury  is  such  as  to  entitle  the  complainant  to 
damages  in  an  action  at  law,  with  the  result  that  he  is  entitled  to  an 
injunction  in   this   court." 


I  514  EQUITABLE  BEMEDIEa  868 

suggestions  are  borne  out  by  the  following  language  of 
the  court  in  a  well-considered  American  case:  *'The 
next  position  taken  in  behalf  of  the  defendant  is,  that 
even  if  the  subtraction  of  this  water  is  to  be  held  to  be 
wrongful  with  respect  to  the  complainant,  still  a  court 
of  equity  will  not  give  relief  by  way  of  injunction,  but 
will  leave  the  parties  injured  to  their  remedy  at  law. 
If  this  were  an  application  for  a  preliminary  injunction 
it  is  clear  that  an  objection  of  this  kind  should  prevail, 
for  the  act  which  the  defendant  threatens  to  do  is  ob- 
viously not  of  a  character  to  inflict  any  irreparable  in- 
jury. But  after  a  court  of  equity  has  entertained  a 
bill,  and,  instead  of  sending  the  case  to  a  trial  at  law, 
has  itself  tried  the  questions  of  fact  involved,  and 
settled  the  legal  right  in  favor  of  the  complainant,  it 
certainly  would  be  a  result  much  to  be  deprecated,  if, 
at  such  a  stage  of  the  controversy,  it  was  the  law  that 
the  chancellor  were  required  to  say  to  such  a  complain- 
ant, 'Your  right  is  clear;  if  you  sue  at  law  you  must 
inevitably  recover,  and  after  several  recoveries  it  will 
then  be  the  duty  of  this  court,  on  the  ground  of  avoid- 
ing a  multiplicity  of  suits,  to  enjoin  the  continuance  of 
this  nuisance;  still  you  must  go  through  the  form  of 
bringing  such  suits,  before  this  court  of  equity  can  or 
will  interfere.'  In  those  cases  in  which  to  the  mind  of 
the  chancellor,  the  right  of  the  complainant  is  clear, 
and  the  damage  sustained  by  him  is  substantial,  so  that 
his  right  to  recover  damages  at  law  is  indisputable,  and 
the  chancellor  has  considered  and  established  his  right, 
I  think  it  not  possible  that  any  authority  can  be  pro- 
duced which  sustains  the  doctrine  contended  for  by  the 
counsel  of  the  defendant."^® 

10  Per  Beasley,  C.  J.,  in  Higgins  t.  Flemington  Water  Co.,  36  N- 
J.  Eq.  538,  544. 


669  INJUNCTION  AGAINST  NUISANCE.  §  615 

§  515.  Illustrations. — The  cases  in  which  nuisances 
were  enjoined  were  not  frequent  before  the  middle  of 
the  last  century,  but  since  that  time  they  have  become 
very  numerous,  covering  a  wide  variety  of  states  of 
fact  Illustrations  are  injunctions  against  the  pollu- 
tion,^ ^  diversion,^^  obstruction,^^  or  abstraction^*  of  run- 
ning water;  the  pollution,  taking,  or  waste  of  percolat- 
ing water ;^^  noises  of  various  kinds ;^®  vibration  from 

11  Crossley  v.  Lightowler,  L.  R.  2  Ch.  App.  478;  Holt  v.  Corporatiod 
of  Eochdale,  L.  R.  10  Eq,  354;  Mclntyre  Bros.  v.  McGavin,  [1893] 
App.  Cas,  268;  Piatt  v.  Waterbury,  72  Conn.  531,  77  Am.  St.  Eep. 
335,  45  Atl.  154,  48  L.  R.  A.  691;  Chapman  v.  City  of  Rochester,  110 
N.  Y.  273,  6  Am.  St.  Eep.  366,  18  N.  E.  88;  Strobel  v.  Kerr  Salt  Co., 
164  N.  Y.  303,  79  Am.  St.  Rep.  643,  58  N.  E.  142,  51  L.  R.  A.  6S7; 
Fuller  V.  Swan  etc.  Co.,  12  Colo.  12,  19  Pac.  836;  Village  of  Dwight 
V.  Hayes,  150  111.  273,  41  Am.  St.  Eep.  360,  37  N.  E.  218;  Valparaiso 
V.  Hagen,  153  Ind.  337,  74  Am.  St.  Rep.  305,  54  N.  E.  1062,  48  L.  E. 
A.  707;  Barton  v.  Union  Cattle  Co.,  28  Neb.  350,  26  Am.  St.  Rep. 
340,  44  N.  W.  454,  7  L.  R.  A.  4o7. 

12  Pugh  V.  Golden  etc.  Ry.  Co.,  L.  E.  15  Ch.  D.  330;  Gardner  v. 
Village  of  Newburgh,  2  Johns.  Ch.  162,  7  Am.  Dec.  526;  Smith  v. 
City  of  Rochester,  92  N.  Y.  463,  44  Am.  Rep.  393;  Pine  v.  Mayor  etc. 
N.  Y.,  103  Fed,  337;  Rupley  v.  Welch,  23  Cal.  452;  Ferrea  v.  Knipo, 
28  Cal.  340,  87  Am.  Dec.  128;  Moore  v.  Clear  Lake  Water  Works,  68 
Cal.  146,  8  Pac.  816;  Saint  v.  Guerrerio,  17  Colo.  448,  31  Am.  St.  Rep. 
320,  30  Pac.  335;  Watson  v.  New  Milford  etc.  Co.,  71  Conn.  442,  42 
Atl.  265;  Kay  v.  Kirk,  76  Md.  41,  35  Am.  St.  Rep.  408,  24  Atl.  326; 
Raymond  v.  Winsette,  12  Mont.  551,  33  Am.  St.  Rep.  604,  31  Pac. 
537. 

13  McKee  v.  Delaware  etc.  Co.,  125  N.  Y.  353,  21  Am.  St.  Eep. 
740,  26  N.  E.  305;  Belknap  v.  Trimble,  3  Paige,  577. 

14  Mostyn  v.  Atherton,  [1899]  2  Ch.  360;  Arthur  v.  Case,  1  Paige, 
447.  For  a  fuller  discussion  of  nuisances  to  running  water,  see 
post,  Vol.  II,  chapter  on  Injunctions  for  Protection  of  Water  Rights. 

15  Ballard  v.  Tomlinson,  L.  R.  29  Ch.  D.  115;  Proprietors  etc. 
River  v.  Braintree  etc.  Co.,  149  Mass.  480,  21  N.  E.  761,  4  L.  R.  A. 
272;  Barclay  v.  Abraham,  121  Iowa,  619,  100  Am.  St.  Rep.  365,  96 
N.  W.  1080.  See  Trinidad  Asphalt  Co.  v.  Abard,  68  L.  J.  P.  C.  114, 
[1S99]  App.  Cas.  594,  81  L.  J.,  N.  S.,  132,  48  Week.  Rep.  116. 

16  Soltau  V.  De  Held,  2  Sim.,  N.  S.,  133  (ringing  of  bells  in  a 
chapel  and  a  church  at  frequent  intervals  every  day);  Walker  v. 
Brewster,  L.  R.  5  Eq.  25  (brass  band  which  played  twice  a  week  from 
two  or  three  o'clock  in  the  afternoon  until  eleven  o'clock  at  night); 


§  515  EQUITABLE  REMEDIES.  S70 

machinery  or  from  pounding  ;^^  unpleasant  odors  from 
urinals,  privies,  horses,  stables,  slaughter-houses ,  and 
the  like;^^  noxious  vapors,  gases  or  smoke  from  brick- 
kilns, factories,  blacksmith-shops  and  the  like;^^  ob- 
jects or  acts  which  are  dangerous  to  those  in  their  vicin- 
ity, such  as  powder  magazines,-"  hospitals  for  contag- 

Bellamy  v.  Wells,  60  L.  J.  Ch,  D.  156  (sporting  club,  patrons  of  which 
annoyed  the  plaintiffs  by  whistling  for  cabs  after  midnight);  Ball 
V.  Eay,  L.  E.  8  Ch.  App.  467  (noise  made  by  horses  in  a  stable  adjoining 
the  plaintiff's  hotel);  Bishop  v.  Banks,  33  Conn.  118,  87  Am.  Dec. 
197  (bleating  of  calves  during  the  night-time  in  the  defendant's 
slaughter-house  pens);  Hill  v.  McBurney,  112  Ga.  788,  38  S.  E.  42, 
52  L.  E.  A.  398  (blowing  of  a  factory  whistle  at  unseasonable  hours) ; 
Trom  V.  Lewis,  31  Ind.  App.  178,  66  N.  E.  490  (beer-garden);  Snyder 
V,  Cabell,  29  W.  Va.  48,  1  S.  E.  241  (skating-rink);  Stevenson  v. 
Pucci,  32  Misc.  Kep.  464,  66  N.  Y.  Supp.  712  (blasting  near  plaintiff's 
house  before  seven  o'clock  in  the  morning  or  after  six  o'clock  in  the 
evening);  Sturges  v.  Bridgman,  L.  E,  11  Ch.  D.  852  (vibration  from 
mortar  and  pestle);  Eogers  v.  John  Week  etc.  Co.,  117  Wis.  5,  93  N. 
W.  821. 

17  Hennessy  v.  Carmony,  50  N.  J,  Eq.  (5  Dick.)  616,  25  Atl.  374; 
Sturgis  V.  Bridgman,  L.  E.  11  Ch.  D.  852;  English  v.  Progress  etc. 
Co.,  95  Ala.  2'59,  10  South.  134  (injunction  refused,  because  fact  that 
nuisance  existed  was  not  established);  Colwell  v.  St.  Pancras  etc. 
Council,   [1904]   L.  E.  1  Ch.  707. 

18  Vernon  v.  Vestry  etc.  Westminster,  L.  E.  16  Ch.  D.  449;  Eadican 
V.  Buckley,  138  Ind.  582,  38  N.  E.  53;  Perrine  v.  Taylor,  43  N.  J.  E.j. 
128,  12  Atl.  769;  Lippincott  v.  Leslie,  44  N.  J.  Eq.  120,  14  Atl.  103; 
Eapier  v.  London  etc.  Co.,  [1893]  2  Ch.  589;  Pruner  v.  Pendleton, 
75  Va.  516,  40  Am.  Eep.  738;  Eeichert  v.  Geers,  98  Ind.  73,  49  Am. 
Eep.  736;  Shroyer  v.  Campbell,  31  Ind.  App.  83,  67  N.  E.  193. 

19  Campbell  v.  Seaman,  63  N.  Y.  568,  20  Am.  Eep.  567;  Pollock  v. 
Lester,  11  Hare,  266';  Crump  v.  Lambert,  L.  R.  3  Eq.  409;  Eoss  v. 
Butler,  19  N.  J.  Eq.  294,  97  Am.  Dec.  654;  McMorran  v.  Fitzgernl.I, 
106  Mich.  649,  58  Am.  St.  Eep.  511,  64  N.  W.  569;  Peacock  v.  Spitzel- 
berger,  16  Ky.  Law  Eep.  803,  29  S.  W.  877;  Daugherty  etc.  Co.  v. 
Kittanning  etc.  Mfg.  Co.,  178  Pa.  St.  215,  35  Atl.  1111.  See,  also,  St. 
Louis  Safe  Deposit  &  Sav.  Bank  v.  Kennett  Estate,  101  Mo.  App.  370, 
74  S.  W.  474  (heat  from  smoke-stack  adjoining  plaintiff's  building). 

20  Heeg  V.  Licht,  80  N.  Y.  579,  36  Am.  Eep.  654;  Wier's  Appeal,  74 
Pa.  St.  230;  Tyner  v.  People's  Gas  Co.,  131  Ind.  408,  31  N.  E.  61  (keon- 
ing  nitroglycerin  near  plaintiff's  dwelling);  Blanc  v.  Murray,  36  T^a. 
Ann.  162,  51  Am.  Eep.  7  (inflammable  building) ;  Kaufman  v.  Stein,  138 


871  INJUNCTION   AGAINST  NUISANCE.  §  515 

ious  diseases,^^  blasting"^  and  similar  dangors;  things 
whifh  offend  the  moral  sense,  such  as  brothels  ;'^^  ob- 

Ind.  49,  46  Am.  St.  Eep.  368,  37  N.  E.  33  (same  as  preceding  case). 
In  Heeg  v.  Licht,  supra,  the  injunction  was  sought  to  restrain  the 
defendant  from  manufacturing  and  storing  upon  his  premises  fire- 
works or  other  explosive  substances.  In  pointing  out  that  the  exis- 
tence of  a  nuisance  does  not  depend  at  all  upon  any  negligence  of 
the  defendant,  the  court,  per  Miller,  J.,  said:  "Most  of  the  cases  cited 
rest  upon  the  maxim  "sic  iitere  tuu,"  etc.,  and  where  the  right  to  tho 
undisturbed  possession  and  enjoyment  of  property  comes  in  conflict 
with  the  rights  of  others,  that  it  is  better,  as  a  matter  of  public 
policy,  that  a  single  individual  should  surrender  the  use  of  his  land 
for  especial  purposes  injurious  to  his  neighbors  or  to  others,  than 
that  the  latter  should  be  deprived  of  the  use  of  their  property  alto- 
gether or  be  subjected  to  great  danger,  loss  and  injury,  which  might  re- 
sult if  the  rights  of  the  former  were  without  any  restriction  or  re- 
straint. The  keeping  of  gunpowder  or  other  materials  in  a  place,  or 
under  circumstances,  where  it  would  be  liable,  in  case  of  explosion,  to 
injure  the  dwelling-houses  or  the  persons  of  those  residing  in  close  prox- 
imity, we  think  rests  upon  the  same  principle,  and  is  governed  by  the 
same  rules.  An  individual  has  no  more  right  to  keep  a  magazine 
of  powder  upon  his  premises,  which  is  dangerous,  to  the  detriment  of 
his  neighbor,  than  he  is  authorized  to  engage  in  any  other  business 
which  may  occasion  serious  consequences. ' '  With  Blanc  v.  Murray 
and  Kaufman  v.  Stein,  supra,  compare  Ehodes  v.  Dunbar,  57  Pa.  St. 
(7  P.  F.  Smith)  274,  98  Am.  Dec.  221;  Duncan  v.  Hayes,  22  N.  J.  Eq. 
25;  Chambers  v.  Cramer,  49  W.  Va.  395,  38  S.  E.  691,  54  L.  R.  A.  545; 
English  v.  Progress  etc.  Co.,  95  Ala.  259,  10  South.  134 — which  cases 
hold  that  mere  increased  risk  from  fire  and  consequent  rise  of  insur- 
ance rates  do  not  constitute  a  nuisance  and  will  not  be  enjoined. 

21  Metropolitan  Asylum  v.  Hill,  L.  R.  6  App.  Cas.  196;  Gilford  v. 
Babies'  Hospital  etc.  N.  Y.,  21  Abb.  N.  C.  159,  1  N.  Y.  Supp.  448. 

22  Hill  V.  Schneider,  4  N.  Y.  Ann.  Cas.  70,  13  App.  Div,  299,  43 
N.  Y.  Supp.  1;  Stevenson  v.  Pucci,  32  Misc.  Rep.  464,  66  N.  Y.  Supp. 
712. 

23  Cranford  v.  Tyrrell,  128  N.  Y.  341,  28  N.  E.  514;  Hamilton  v. 
Whitridge,  11  Md.  128,  69  Am.  Dec.  184;  Weakley  v.  Page,  102  Tenn. 
178,  53  S.  W,  -551,  46  L.  R.  A.  552;  Farrell  v.  Cook,  16  Neb.  483,  49 
Am.  Eep.  721,  20  N.  W.  720  (standing  of  jacks  and  stallions  in 
sight  of  plaintiff's  dwelling);  Ingersoll  v.  Rousseau,  35  Wash.  92, 
76  Pac.  513;  Dempsie  v.  Darling  (Wash.),  81  Pac.  152.  These 
cases  do  not,  of  course,  hold  that  immorality  is  per  se  a  basis 
for  an  injunction;  such  further  characteristics  as  will  brinqr  it 
within   the   usual    delinitinns   of   nuisance   must   be  shown.     In   Craw- 


J  515  EQUITABLE  REMEDIES.  87L 

struction  of  highways^^  or  navigation  f^  removal  of  sup- 
port to  land;^^  acts  which  cause  a  physical  invasion  of 
the  plaintiff's  land,  such  as  overflowing  it,^*^  or  casting 

ford  V.  Tyrrell,  supra,  Gray,  J.,  said  on  this  point:  "The  rule  of 
law  requires  of  him  who  complains  of  his  neighbor's  use  of  his 
property,  and  seeks  for  redress  and  to  restrain  him  from  such  use, 
that  he  should  show  that  a  substantive  injury  to  property  is  com- 
mitted. The  mere  fact  of  a  business  being  carried  on,  which  may 
be  shown  to  be  immoral  and,  therefore,  prejudicial  to  the  character 
of  the  neighborhood,  furnishes,  of  itself,  no  ground  for  equitable  in- 
terference at  the  suit  of  a  private  person." 

24  Cabbell  v.  Williams,  127  Ala.  320,  28  South.  405;  Green  v.  Oaks, 
17  111.  249;  Martin  v.  Marks,  154  Ind.  549,  57  N.  E.  249;  Newcome 
V.  Crews,  98  Ky.  339,  32  S.  W.  947;  Streeter  v.  Stainaker,  61  Neb. 
205,  85  N.  W.  47;  Morris  etc.  Co.  v,  Greenville  etc.  Co.  (N,  J.),  46 
Atl.  638;  De  Witt  v.  Van  Schoyk,  110  N.  Y.  7  (affirming  35  Hun,  103), 
17  N.  E.  42o,  6  Am.  St.  Eep.  342;  Hill  v.  Hoffman  (Tenn.  Ch.  App,), 
88  S.  W.  929;  Callanan  v.  Gilman,  107  N.  Y.  360,  1  Am.  St.  Eep 
838,  14  S.  E.  264;  Mayor  etc.  Columbus  v.  Jaques,  30  Ga.  506;  Winsor 
V,  German  Sav.  &  L.  Soc,  31  Wash.  365,  72  Pac.  66  (obstructing  com- 
mon hallway).  An  unauthorized  railroad  track  in  a  street  may  be 
Buch  a  nuisance:  Hoist  v.  Savannah  Electric  Co.,  131  Fed.  931;  Lake 
Shore  &  M.  S.  Ey.  Co.  v.  City  of  Elyria,  69  Ohio,  414,  69  N.  E.  738; 
Tennessee  Brewing  Co.  v.  Union  Ey.  Co.  (Tenn.),  85  S.  W.  864.  See, 
also,  Zook  V.  Pennsylvania  R.  Co.,  206  Pa.  St.  603,  56  Atl.  82. 

26  Pennsylvania  v.  Wheeling  etc.  Co.,  13  How.  (U.  S.)  518,  14  L. 
ed.  249;  Attorney-General  v.  Eau  Claire,  37  Wis.  400.  See,  also, 
Monroe  Mill  Co.  v.  Menzel,  35  Wash.  487,  102  Am.  St.  Eep.  905,  77 
Pac.  813  (floating  timber);  Eeyburn  v.  Sawyer,  135  N.  C.  328,  102 
Am.  St.  Eep.  555,  47  S.  E.  761. 

26  Trowbridge  v.  True,  52  Conn.  190,  32  Am.  Eep.  579;  Finegao 
V.  Eckerson,  32  App.  Div.  233,  52  N.  Y.  Supp.  993;  Hunt  v.  Peake, 
Johns.  705,  6  Jur.,  N.  S.,  1071;  Morrison  v.  Latimer,  51  Ga.  519. 

27  Dayton  v.  Drainage  Commrs.,  128  111.  271,  21  N.  E,  198;  Pence 
V.  Garrison,  93  Ind.  345;  Jacobsen  v.  Van  Boening,  48  Neb.  80,  48 
Am.  St.  Eep.  684,  66  N.  W.  993,  32  L.  R.  A.  229;  Lake  Erie  etc.  Co.  v. 
Young,  135  Ind.  426,  41  Am.  St.  Eep.  430,  35  N.  E.  177;  Patoka  Tp. 
v.  Hopkins,  131  Ind.  142,  31  Am.  St.  Eep.  417,  30  N.  E. 
896;  Pettigrew  v.  Village  of  Evansville,  25  Wis.  223,  3  Am.  Eep. 
50;  Lamborn  v.  Covington  Co.,  2  Md.  Ch.  409;  Moore  v.  Chicago 
etc.  Co.,  75  Iowa,  263,  39  N.  W.  390;  Baker  v.  Weaver,  104  Ga.  228,  30 
S.  E.  726;  Davis  v.  Londgreen,  8  Neb.  43;  Noyes  v.  Cosselinan,  29 
Wash.  63o,  92  Am.  St.  Eep.  937,  70  Pac.  61;  Sullivan  v.  Dooley,  31 
Tex.   Civ.   App.   589,   73   S.   W.   82;  Starr  v,  Woodberry   etc.   Works* 


873  INJUNCTION  AGAINST  NUISANCE.  §  HIO 

refuse  matter  upon  it.^^  This  list^^  is  not  dositrned  to 
be  an  exhaustive  classification, — from  the  nature  of 
nuisance  no  list  could  be  exhaustive — but  it  will  serve 
to  show  the  more  common  forms  of  nuisances  which 
have  been  enjoined  and  something  of  the  extent  of 
equity  jurisdiction  of  the  subject. 

§  516.  Injunctions  on  Sole  Ground  of  Preventing  Multi- 
plicity of  Suits — In  the  cases  in  which  the  only  reason 
of  equity's  intervention  to  enjoin  has  been  to  prevent 
the  necessity  of  a  multiplicity  of  suits  at  law  because  of 
a  continuing  or  recurring  nuisance,  the  courts  have 
shown  the  same  lack  of  unanimity  that  is  always  com- 
mon to  this  ground  of  jurisdiction,  whether  it  arises 
from  a  trespass,  nuisance  or  other  tort.  Consonant  to 
principle,  the  weight  of  authority  holds  that  the  mere 
existence  of  a  continuing  or  recurring  nuisance,  how- 
ever trivial,  provided  only  it  is  sufficient  to  sustain  an 
action  at  law  for  damages,  will  support  a  bill  for  an 
injunction.^**  There  are  authorities,  however,  which 
bold  that  this  is  not  enough  to  base  an  injunction  upon, 

(N.  J.  Ch.),  48  Atl.  911;  Abbott  v.  Pond,  142  Cal.  393,  76  Pac.  60;  Car- 
ley  V.  Jennings,  131  Mich.  385,  91  N.  W.  634. 

28  Logan  V.  Driscoll,  19  Cal.  623,  81  Am,  Dec.  90  (mining  debris 
washed  upon  the  plaintiff's  land);  Haugh's  Appeal,  102  Pa.  St.  42, 
48  Am.  Eep.  193  (privy  from  which  fluid  percolated  into  the  plain- 
tiff's well). 

29  In  the  making  of  the  above  List,  the  collection  and  arrangement 
of  the  cases  in  1  Ames's  Cases  in  Equity  Jurisdiction,  pages  611-614 
has  been  of  material  assistance. 

30  Whitfield  v.  Eogers,  26  Miss.  (4  Cush.)  84,  59  Am.  Dec.  244; 
Baltimore  etc.  K.  E.  Co.  v.  Baptist  Church,  108  U.  S.  317,  329,  2  Sup. 
Ct.  719,  27  L.  ed.  739;  City  of  Demopolis  v.  Webb,  87  Ala.  659,  6 
South.  408;  Lux  v.  Haggin,  69  Cal,  256,  10  Pac.  674;  Koopman  v. 
Blodgett,  70  Mich.  610,  14  Am.  St.  Eep.  527,  38  N.  W.  649;  Stevens 
V.  Stevens,  52  Mass.  (11  Met.)  251,  45  Am.  Dec.  203;  Fleischner  v. 
Citizens'  etc.  Co.,  25  Or.  119,  35  Pac.  174;  Corning  &  Winslnw  v. 
Troy  etc.  Factory,  40  N.  Y.  191,  39  Barb.  311.  34  Barb.  485.  6  How. 
Pr.  89;  Sullivan  v.  Jones  etc,  Co.,  208  Pa.  St,  540,  57  Atl.  1065;   Har- 


§  516  EQUITABLE  REMEDIES.  874 

and  that  the  only  multiplicity  of  suits  which  equity 
will  interfere  to  prevent  is  that  in  which  there  are  a 
number  of  parties  to  the  controversy  on  one  side  or  the 
other.^^  It  may  be  added  further,  though  the  matter 
calls  for  no  discussion  in  this  place,  that  the  subject 
of  nuisance  is  the  most  fruitful  field  in  furnishing  the 
questions  of  greatest  difficulty  under  the  head  of  bills 
of  peace,  viz.,  questions  as  to  the  propriety  of  joining  as 
plaintiffs  or  defendants  parties  between  whom  there  is 
no  "community  of  interest  in  the  subject-matter  of  the 
suit.  ""2 

per  etc,  Co.  v.  Mountain  etc.  Co.,  65  N.  J.  Eq.  479,  56  Atl.  297;  Car- 
penter V.  Capital  etc.  Co.,  178  111.  29,  69  Am.  St.  Eep.  286,  52  N.  E. 
973,  43  L.  R.  A.  645;  Sherry  v.  Perkins,  147  Mass.  212,  9  Am.  St.  Eep. 
689,  17  N.  E.  307;  Campbell  v.  Seaman,  63  N.  Y.  568,  20  Am.  Eep. 
567;  Hennessy  v.  Carmony,  50  N.  J.  Eq.  (5  Dick.)  016,  25  Atl.  374. 
in  Whitfield  v.  Eogers,  supra,  the  bill  was  to  enjoin  the  erection  of 
a  mill-dam  which  would  cause  the  plaintiff's  land  to  be  overflowed. 
In  affirming  the  issuance  of  an  injunction  by  the  lower  court,  Handy, 
J.,  said:  "It  is  insisted,  in  the  first  place,  on  the  part  of  the  appel- 
lant, that  the  complainant  was  not  entitled  to  relief  in  equity  on 
the  ground  of  the  private  nuisance;  because  relief  in  equity  will 
only  be  granted  in  such  cases  where  the  mischief  is  irreparable  and 
cannot  be  compensated  in  damages.  Authorities  are  to  be  found 
holding  this  doctrine;  but  the  modern  and  more  approved  cases  ex- 
tend  the   relief   much   further The   inundations   occasioned  by 

the  erection  of  the  dam,  the  injuries  thereby  caused  to  the  complain- 
ant's lands,  and  the  periodical  destruction  of  his  timber,  did  not 
constitute  a  single  trespass,  but,  from  their  nature,  must  have  been 
'constantly  recurring  grievances.'  It  would  hav^  been  unreasonable 
and  oppressive  to  force  the  complainant  into  a  cou-<  of  law  to  ro- 
dress  each  repetition  of  the  injury  as  it  might  recur  from  time  to 
time;  and  therefore,  on  the  very  principle  of  'suppressing  intermina- 
ble litigation,'  and  of  'preventing  multiplicity  of  suits,'  courts  of 
equity  alone  can  give  just  and  adequate  relief  in  such  cases." 

31  See  Cherry  v.  Stein,  11  Md.  1,  and  General  Electric  Ry.  Co.  v. 
Chicago  etc.  Co.,  184  111.  588,  56  N.  E.  963,  which  in  effect  hold  that 
the  fnet  of  a  nuisance  being  continuous  is  not  enough  to  allow  a 
plaintiff  to  come  into  equity,  though  there  is  no  discussion  of  the 
point  in   either  case. 

32  See  the  discussion  of  this  subject  in  1  Pom.  Eq.  Jur.  §§  255- 
270. 


875  r\J  UNCTION   AGAIiNST  NUISANCE.  §  517 

§  517.  Miscellaneous  Grounds  of  Jurisdiction. — It  has  al- 
ready been  pointed  out  in  these  pages  that  the  funda- 
mental reason  for  equity's  enjoining  nuisances  is  the  lack 
of  an  adequate  legal  remedy.  It  has  also  been  seen  that 
the  most  common  illustrations  of  inadequacy  are  the 
cases  in  which  the  injury  is  irreparable  or  of  a  continu- 
ing or  recurring  nature,  and  that  these  two  grounds  of 
jurisdiction  are  usually  found  together  in  the  same 
cases.  This  is  so  largely  true  that  almost  all  of  the 
cases  are  rested  on  one  or  both  of  these  grounds.  The 
few  cases  that  remain  are,  perhaps,  on  this  account,  the 
more  significant  in  demonstrating  that  the  fundamental 
reason — the  inadequacy  of  the  legal  remedy — is  not  to 
be  reduced  to  a  few  or  any  specific  number  of  forms  of 
manifestation.  It  is  an  open  inquiry  in  every  case 
whether  the  plaintiff  can  get  adequate  relief  at  law;  if 
not,  for  any  reason,  he  may  come  into  equity.  Here, 
as  elsewhere,  "it  is  not  enough  that  there  is  a  remedy 
at  law;  it  must  be  plain  and  adequate,  or,  in  other 
words,  as  practical  and  efficient  to  the  ends  of  justice 
and  its  prompt  administration  as  the  remedy  in 
equity."^^  Hence  inadequacy  has  been  found  in  the 
fact  that  independent  acts  of  several  defendants  com- 
bine to  produce  the  injury  to  the  plaintiff  so  that  the 
particular  share  of  damage  done  by  each  one  is  incap- 
able    of    ascertainment.^^     This    reason     may     apply 

33  Quoted  in  Lockwood  v.  Lawrence,  77  Me.  297,  312,  52  Am.  Eep. 
763,  from  Boyce's  Exrs.  v.  Grundy,  3  Pet.  210,  215,  7  L.  ed.  055. 

34  Woodruff  V.  North  Bloomfield  Gravel  Min.  Co.,  8  Saw.  (U.  S. 
C.  C.)  628,  16  Fed.  25;  Lockwood  v.  Lawrence,  77  Me.  297,  52  Am. 
Eep.  763;  Woodyear  v.  Schaefer,  57  Md.  1,  40  Am,  Eep.  419; 
Madison  v.  Ducktown,  S.,  C.  &  L  Co.  (Tenn.),  83  S.  W.  658.  In  thd 
first  cited  of  these  cases  the  court  said:  "There  is  a  very  great  dif- 
ference between  seeking  to  recover  damages  at  law  for  an  injury 
already  inflicted  by  several  parties  acting  independently  of  each 
other,  and  restraining  parties  from  committing  a  nuisance  in  the 
fxiture.     In  equity  the  court  is  not  tied  down  to  one  particular  form 


S  517  EQUITABLE  REMEDIES.  87fi 

equally  to  different  states  of  facts  whenever,  for  anj 
cause,  the  amount  of  damage  is  unascertainable.  Ita 
substance  is  simply  the  obvious  proposition  that  when- 
ever the  estimate  of  damages  recoverable  at  law  must 
be  based  largely,  or  to  any  considerable  degree,  upon 
conjecture,    the    legal    remedy    cannot    be    adequate.^** 

of  judgment.  It  can  adapt  its  decrees  to  the  circumstances  in  each 
case,  and  give  the  proper  relief  as  against  each  party,  without  ref- 
erence to  the  action  of  others,  and  without  injury  to  either.  Each 
is  dealt  with,  with  respect  to  his  own  acts,  either  as  affected  or  as 
unaffected  b7  the  acts  of  the  others.  It  is  not  necessary  for  the 
prevention  of  future  injury,  to  ascertain  what  particular  share  of  the 
damages  each  defendant  has  inflicted  in  the  past,  or  is  about  to  in- 
flict in  the  future.  It  is  enough  to  know  he  has  contributed  and  is 
continuing  to  contribute  to  a  nuisance,  without  ascertaining  to  what 
extent,  and  to  restrain  him  from  contributing  at  all." 

85  In  Heilbron  v.  Fowler  Switch  Canal  Co.,  75  Cal.  426,  7  Am.  St. 
Eep.  183,  17  Pac.  535,  the  facts  were  that  the  defendant  proposed 
to  divert  fifteen  hundred  cubic  feet  of  water  per  second  from  Kings 
river,  which  formed  the  boundary  of  the  plaintiff's  farm  for  thirty 
miles  and  flowed  through  it  for  ten  miles.  In  affirming  a  judgment 
granting  an  injunction  the  court,  per  Temple,  J.,  said:  "It  does  not 
follow  because  the  injury  is  incapable  of  ascertainment,  or  of  being 
computed  in  damages,  and  therefore  only  nominal  damages  can  be 
recovered,  that  it  is  trifling  or  inconsiderable.  It  is  doubtful  if  it 
can  be  said  that  there  is  any  evidence  in  the  case  which  tends  to 
show,  or  if  that  which  was  offered  would  have  tended  to  show,  that 
the  injury  to  plaintiffs  was  inconsiderable,  that  it  was  unascertain- 
able, and  in  that  sense  inappreciable;  may  be  a  good  reason  why  an 

injunction   should   issue It   is   obvious   that    in    a   climate    like 

that  where  this  land  is  situated,  the  benefit  derived  from  a  flow  of 
water  for  thirty  miles  along  its  boundary,  and  ten  miles  through  it, 
cannot  be  inconsiderable,  but  yet  the  extent  of  benefit  must  ever 
be  an  unknown  quantity."  In  Lockwood  v.  Lawrence,  supra,  the 
court,  per  Foster,  J.,  said:  "The  very  difficulty  of  obtaining  substan- 
tial damages  was  stated  to  be  a  ground  for  relief  by  injunction  in 
Clowes  v,  Staffordshire  Potteries  Co.,  8  L.  E.  Ch.  App,  125.  With  stilJ 
greater  force  does  this  apply  where  the  injury  is  caused  by  so  many, 
and  in  such  a  way,  that  it  would  be  difficult  if  not  impossible  to  ap- 
portion the  damage,  or  say  how  far  anyone  may  have  contributed  to 
the  result,  and  so  damages  would  be  but  nominal,  and  repeated  actions, 
without  any  substantial  benefit,  might  be  the  result."  See,  to  the 
same  effect,  Lyon   v.   McLaughlin,   32  Vt.   423.     See,  also,   Gilbert   v. 


877  INJUNCTION   AGAINST  NUISANCE.  §  517 

Other  unusual  reasons  for  granting  injunctions  have 
been :  in  a  bill  to  enjoin  the  obstruction  of  a  public 
street  by  municipal  officers,  that  the  social  standing, 
and  character  and  reputation,  of  the  defendants  would 
make  indictment  ineffectual,  while  abatement  would 
not  be  an  adequate  remedy  because  the  expense  of  abat- 
ing would  fall  on  the  tax-pa^-ers  ;^^  and,  in  a  bill  by  a 
tenant  to  have  a  bridge,  which  obstructed  the  entrance 
to  the  building  he  occupied,  removed,  that  the  plain- 
tiff's legal  remedy  was  inadequate  because  he,  being  a 
tenant  and  not  owner  of  the  fee,  could  not  maintain 
an  action  for  abatement  but  could  sue  only  in  case  for 
damages.^^  No  case  has  been  found  so  holding,  but  it 
would  seem  clear  that  the  insolvency  of  a  defendant 
might  well  be  a  basis  of  injunction  here  just  as,  by  the 
weight  of  authority,  it  is  in  trespass.^^  As  in  trespass, 
too,  the  basis  of  an  injunction  is  sometimes  said  to  be 
that  otherwise  the  defendant  would  acquire  a  prescrip- 
tive right  to  do  the  wrongful  act.^^ 

Mickle,  4  Sandf.  Ch.  357.  It  is  not  meant  to  be  said  that  the  only 
ground  on  which  the  cases  cited  in  connection  with  this  paragraph  of 
the  text  might  have  been,  or  even  were,  placed  is  that  to  which,  in 
each  case,  attention  is  directed  here;  the  present  purpose  is  simply 
to  point  out  the  readiness  of  the  equity  courts  to  make  the  inade- 
quacy of  the  legal  remedy,  in  whatever  form  it  may  appear,  the  cri- 
terion of  their  jurisdiction. 

36  Mayor  etc.  of  Columbus  v.  Jaques,  30  Ga.  506.  See,  also,  Le- 
frois  V.  Monroe  County,  24  App.  Div.  421,  48  N.  Y.  Supp.  519. 

37  Knox  V.  Mayor  etc.  of  New  York,  55  Barb.  404. 

38  See  Wilson  v.  Featherstone,  120  N.  C.  449,  27  S.  E.  121;  Walker 
V.  Walker,  51  Ga.  22;  Porter  v.  Armstrong,  132  N.  C.  66,  43  S.  E. 
542;  Keyburn  v.  Sawyer,  135  N.  C.  328,  102  Am.  St.  Eep.  555,  47  S. 
E.  761. 

39  Meyer  v.  Phillips,  97  N.  Y.  480,  49  Am.  Eep.  538.  The  criticism 
of  this  reason  made  in  the  chapter  on  trespass — viz.,  that  an  action 
at  law  or  an  interference  with  the  defendant's  wrongful  act  once 
in  every  prescriptive  period,  will  prevent  any  right  from  arising  by 
prescription — applies  here  also:  See  Hart  v.  Hildebrandt,  30  Ind. 
App.  415,  €6  N.  E.  173. 


§§  518,519  EQUITABLE  KEMEDIES.  873 

§  518.  What  the  Plaintiff  Must  Allege. — A  plaintiff 
who  seeks  an  injunction  against  a  nuisance  must  allege 
his  own  right  clearly  and  definitely  in  order  that  the 
court's  order  for  the  protection  of  it  may  be  certain 
and  without  ambiguity;  otherwise  the  decree  will,  of 
course,  be  impossible  of  intelligent  enforcement.*"  He 
must  also,  for  obvious  reasons,  allege  that  the  defendant 
is  doing  or  threatening  to  do  the  acts  complained  of.*^ 
It  is  not  necessary  for  the  plaintiff  to  allege  that  his 
injury  will  be  irreparable  or  that  the  legal  remedy  is 
otherwise  inadequate,  as  that  is  a  mere  conclusion  of 
law ;  he  must,  however,  allege  facts  which  will  show  the 
injury  to  himself ^^  and  the  inadequacy  of  his  legal  rem- 
edy.*^ And  in  the  courts  of  the  United  States,  at  least, 
this  inadequacy  is  regarded  as  so  important,  that  it 
may  be  insisted  on  by  the  court  sua  sponte,  though  not 
raised  by  the  pleadings,  nor  suggested  by  counsel.** 

§  519.  Previous  Trial  at  Law. — Since  the  rights  that 
are  involved  in  cases  of  nuisance  are  purely  legal,  equity 
taking  jurisdiction  in  particular  cases  only  to  furnish 
a  more  perfect  remedy  than  the  law  affords,  and  follow- 
ing the  legal  rules  in  the  determination  of  all  questions 
save  the  adequacy  of  the  legal  remedy,  it  follows  that 
a  problem  of  procedure  may  be  presented  to  the  equity 
courts  when  an  injunction  is  sought  by  a  plaintiff  in 
whose  favor  the  legal  right,  or  the  fact  that  a  nuisance 

40  Fisk  V.  Wilber,  7  Barb.  395;  Peterson  v.  Beha,  161  Mo.  513,  62 
S.  W.  462. 

41  Ploughs  V.  Boyer,  38  Ind.  115;   Chastey  v.  Ackland,    [1895]   L*. 
K.  2  Ch.  D.  389. 

42  Spooner  v.  McConnell,  1  McLean,  337,  Fed.  Cas.  No.  13,245. 

43  SpragTie  v.  Ehodes,  4  K.  I.  301;  Burrus  v.  City  of  Columbus,  105 
Ga.  42,  31  S.  E.  124. 

44  Parker  v.  Winnipisiogee  etc.  Co.,  67  U.  S.   (2  Black)   545,  17  L. 
ed.  333.     And  see  Burnham  v.  Kempton,  44  N.  H.  78,  92. 


879  INJUNCTION  AGAINST  NUISANCE.       §§  520,521 

exists,  has  never  been  determined.  In  such  case,  should 
the  court  of  equity  pass  on  the  questions  of  law  or  fact 
raised?  or  should  it  refuse  its  extraordinary  relief  un- 
til the  plaintiff  has  procured  a  judgment  of  a  court  of 
law  in  his  favor? 

§  520.  Not  Necessary  to  Granting  of  Temporary  Injunc- 
tions.— The  scope  of  the  inquiry  may  be  narrowed  by 
first  pointing  out  the  classes  of  cases  in  which,  though 
there  has  been  no  trial  at  law,  the  above  problem  is  not 
raised.  Chief  among  these  is  that  class  of  cases  in 
which  only  a  temporary  injunction  is  sought.  The  pur- 
pose of  a  temporary  injunction  generally  is  to  keep  mat- 
ters in  statu  quo  while  some  disputed  question  of  law  or 
fact  is  being  settled.  Obviously,  granting  or  refusing 
it  cannot  turn  upon  the  settlement  of  the  question, 
either  in  law  or  equity.  It  has  its  own  rules,  which 
will  be  considered  later,^^  but  this  is  not  one  of  them. 
The  supreme  court  of  the  United  States  in  a  compara- 
tively early  case  on  this  subject  said:  "The  true  dis- 
tinction in  this  class  of  cases  is  that,  in  prospect  of 
irremediable  injury  by  what  is  apparently  a  nuisance, 
a  temporary   or   preliminary   injunction   may   at   once 

issue But  not  a  permanent  or  perpetual  one  till 

the  title,  if  disputed,  is  settled  at  law."^*^  And  the  law 
is  clearly  in  accord  with  so  much  of  this  distinction  as 
pertains  to  the  granting  of  temporary  injunctions.*^ 

§  521.     Nor  in  all  Cases  of  Permanent  Injunctions There 

are,  also,  some  cases  in  which  a  permanent  injunction 

45  See  infra,  §  535, 

46  Irwin  V.  Dixion,  50  U.  S.  (9  How.)  10,  28,  29,  13  L.  ed.  25,  per 
Woodbury,  J. 

47  Sutton  V.  Lord  Montfort,  4  Sim.  565;  Kennerty  v.  Etiwan  Phos- 
phate Co.,  17  S.  C.  411,  43  Am.  Rep.  607;  Cronin  v.  Bloemecke,  58 
N.  J.  Eq.  313,  43  Atl.  605;  Eochester  v.  Erickson,  46  Barb.  92;  Burn- 
ham  V.  Kempton,  44  N.  H.  78. 


i  521  EQUITABLE  KEMEDIES.  880 

is  sought,  where  the  objection  that  the  plaintiff  has  not 
obtained  a  judgment  at  law  should  be  disregarded 
wholly  by  a  court  of  equity.  The  first  of  these  is  the 
case  in  which  the  defendant  does  not  dispute  either  the 
plaintiff's  right  or  the  fact  that  a  nuisance  exists;  to 
insist  on  a  trial  at  law  in  such  case  would  be  to  impose 
needless  hardship  on  both  parties  to  the  suit.  "The 
only  object  in  establishing  title  at  law,  is  to  show  that 
the  right  is  in  the  plaintiff.  The  suit  at  law  is  only  a 
means  to  accomplish  a  given  end.  When  the  end  is  al- 
ready obtained,  there  could  be  no  reason  for  doing  an 
idle  thing.  This,  the  law,  as  a  rational  system,  never 
requires  to  be  done.  If  the  title  of  the  plaintiff  be 
conceded,  then  there  can  be  no  need  of  a  trial  at  law 
to  establish  that  which  is  already  admitted,"'^^  and  the 
reasoning  is,  of  course,  the  same  as  to  an  admission  that 
a  nuisance  exists.  Hence  the  courts  are  agreed  that 
no  judgment  or  verdict  at  law  is  necessary  in  such 
cases.^^  On  the  same  reasoning  it  is  held  that  a  plain- 
tiff's bill  is  not  demurrable  for  failing  to  state  a  pre- 
vious trial  at  law;  by  demurring  the  defendant  admits 
the  plaintiff''s  right  and  the  fact  of  an  existing  nui- 
sance.^^     In  the  next  place,  a  trial  at  law  will  not  be 

48  Tuolumne  Water  Co.  v.  Chapman,  8  Cal.  392,  397. 

49  Duncan  v.  Hayes  and  Greenwood,  22  N.  J.  Eq.  25;  Eoss  v.  But- 
ler, 19  N.  J.  Eq.  (4  C.  E.  Green.)  294,  97  Am.  Dec.  654;  and  the  casea 
cited  in  the  next  two  notes,  are  a  fortiori  authorities  on  this  point, 
also. 

50  Tuolumne  Water  Co.  v.  Chapman,  8  Cal.  392;  Aldrich  v.  How- 
ard, 7  E.  I.  87,  80  Am.  Dec.  636;  Smitzer  v.  McCulloch,  76  Va.  777; 
Texas  etc.  Ey.  Co.  v.  Interstate  Transp.  Co.,  155  XJ.  S.  585,  15  Sup. 
Ct.  228,  39  L.  ed.  271;  Soltau  v.  De  Held,  2  Sim.,  N.  S.,  133; 
Appeal  of  Bitting,  105  Pa.  St.  517.  But  see  Eastman  v.  Amoskeag 
etc.  Co.,  47  N.  H.  71;  Weller  v.  Smeaton,  1  Cox,  102,  1  Brown  Ch. 
572.  In  Aldrich  v.  Howard,  supra,  the  bill  was  to  enjoin  the  defend- 
ant from  erecting  a  large  livery-stable  in  close  proximity  to  the  com- 
plainant's dwelling-house.  Defendant  demurred  to  the  bill  because, 
among  other  reasons,  it   did  not  allege  a  previous   trial   at  law.     In 


881  INJUNCTION  AGAINST  NUISANCE.  §  52a 

required  when,  from  the  evidence  at  the  hearing,  the 
controverted  questions  are  clear  in  favor  of  one  or  the 
other  party  to  the  suit.  Here,  too,  a  trial  at  law  would 
be  superfluous.^^  It  is  on  this  ground  that  courts  pro- 
ceed when  they  hold  that  a  "mere  denial  of  the  complain- 
ant's rights  by  the  defendant  in  his  answer  will  not  oust 
the  court  of  its  jurisdiction  by  injunction"  f^  or  that  a 
party  who  has  been  for  a  long  time  in  the  undisputed 
possession  of  the  property  or  enjoyment  of  the  right 
with  respect  to  which  he  complains,  may  procure  an 
injunction  in  spite  of  such  denial.^^  And,  finally,  if 
both  parties  consent'*^  or  request  that  the  equity  court 

passing  on  tbis  point  of  the  demurrer  the  court,  per  Ames,  C.  J., 
daid:  "Nor  is  it  true,  that  a  bill  to  enjoin  such  nuisance  is  demur- 
rable, because  it  does  not  state  that  the  rights  of  the  parties,  in  sup- 
port of  the  bill,  have  been  settled  by  a  judgment  at  law.  It  may  bo 
very  proper  that  they  should  be,  if  uncertain,  before  the  court  af- 
fords its  specific  relief;  but  the  title  of  the  plaintiff  to  the  relief 
he  asks  may  be  admitted  by  the  answer,  as  it  is  by  this  demurrer, 
and,  then,  why  should  it  be  further  ascertained,  to  induce  the  action 
of  the  court?' ' 

51  Inchbald  v.  Barrington,  L.  R.  4  Ch.  388;  Eeid  v.  Gifford,  Hopk. 
Ch,  416;  Learned  v.  Hunt,  63  Miss.  373;  Appeal  of  Pennsylvania 
Lead.  Co.,  96  Pa,  St.  116,  42  Am.  Eep.  534;  City  of  Newcastle  v. 
Eaney,  130  Pa.  St.  546,  18  Atl.  1066,  6  L.  E.  A.  737;  Deaconess  etc. 
Hospital  V.  Bontjes,  104  111.  App.  484;  Village  of  Dwight  v.  Hayes, 
150  111.  273,  41  Am.  St.  Eep.  367,  37  N.  E.  218,  affirming  49  111.  App. 
530;  Shields  v.  Arndt,  4  N.  J.  Eq.  (3  Green's  Ch.)  234;  Wood  v. 
McGrath,  150  Ps.  St.  451,  24  Atl.  682,  16  L.  E.  A.  715;  Harelson  v. 
Kansas  City  etc.  Co.,  151  Mo.  483,  52  S.  W.  368. 

62  Carlisle  v.  Cooper,  21  N.  J.  Eq.  (6  C.  E.  Green)  576,  580;  Shields 
V.  Arndt,  4  N.  J.  Eq.  (3  Green  Ch.)  234. 

53  Gardner  v.  Trustees  etc.  Newburgh,  2  Johns.  Ch.  162;  Finch  v. 
Ecsbridger,  2  Vern.  390;  Falls  Village  etc.  Co.  v.  Tibbetts,  31  Conn. 
165;  Burnham  v.  Kempton,  44  N.  H.  78. 

54  Mayor  of  Cardiff  v.  Cardiff  etc.  Co.,  4  De  Gex  &  J.  596;  Ladd 
V.  Granite  State  Brick  Co.,  68  N.  H.  185,  37  Atl.  1041.  As  to  cases 
in  which  the  disputed  question  is  one  of  law,  and  not  of  fact,  see 
Rigby  v.  Great  Western  Ry.  Co.,  2  Phill.  Ch.  49,  51;  Harmon  v.  Jones, 
Craig  &  P.  299.  301,  in  which  a  distinction  is  taken  that  would  have 

Equitable  Rernedi?s,  Vol.   I  —  56 


§  522  EQUITABLE  REMEDIES.  £S2 

try  the  merits  of  the  disputed  question,  it  will  do  so  f^ 
and  it  has  been  held  that  an  objection  to  this  course 
of  proceeding  cannot  be  taken  if  it  has  not  been  raised 
by  the  answer. ■^''^ 

§  522.  Cases  in  Which  It  is  Important. — The  class  of 
cases  not  yet  discussed  is  that  in  which  on  application 
for  a  permanent  injunction,  the  plaintiff's  right,  or  the 
fact  that  a  nuisance  exists,  is  doubtful  on  the  evidence 
before  the  court,  and  the  parties  do  not  consent  to  have 
the  controversy  settled  by  the  court  of  equity.  In  this 
situation  the  general  doctrine  is  that  "either  party  is 
entitled  to  insist  that  the  questions  on  which  the  legal 
rights  depend  should  be  tried  at  law."^''  Satisfactory 
grounds  to  support  this  rule  as  a  matter  of  reason  are 
not  to  be  found  in  the  cases.  Doubtless  the  explana- 
tion of  it  is  largely  the  fact  that  in  early  days  the  courts 
of  equity  were  reluctant  to  undertake  the  decision  of 
purely  legal  rights,  or  questions  of  fact  which  ordi- 
narily were  tried  by  a  jury.^^     It  was  "a  rule  of  expedi- 

great  force  in  a  jurisdiction  in  which  the  courts  of  law  and  equity 
are  distinct. 

55  Walter  v.  Selfe,  4  De  Gex  &  S.  315. 

56  Lambert  v.  Huber,  22  Misc.  Rep.  462,  50  N.  Y.  Supp.  793. 
67  Mayor  of  Cardiff  v.  Cardiff  etc.  Co.,  4  De  Gex  &  J.  596. 

58  Potts  V.  Levy,  2  Drew.  272,  277;  Harman  v.  Jones,  Craig  &  P. 
299,  301;  Walts  v.  Foster,  12  Or.  247,  7  Pac.  24;  Eoath  v.  Driscoll, 
20  Conn.  533,  538,  52  Am.  Dec.  352.  In  Eoath  v.  Driscoll,  supra,  Ells- 
worth, J.,  said:  "The  court  doubtless  possesses  the  necessary  power, 
but  it  is  not  to  be  exercised  as  a  matter  of  course,  even  when  the 
plaintiff  suffers  some  injury  to  his  real  estate.  Whenever  the  rijjht 
iS  doubtful,  or  needs  the  investigation  of  a  jury,  a  court  of  equity 
is  always  reluctant  to  interpose  its  summary  authority,  for  it  is 
rather  the  duty  of  the  court  to  protect  acknowledged  rights  than  to 
establish  new  and  doubtful  ones."  In  Harman  v.  Jones,  supra,  an 
injunction  had  been  granted  forbidding  the  defendant  from  tak- 
ing land  which  plaintiff  claimed.  No  legal  proceedings  were  di- 
rf:cted.  On  appeal  Lord  Cottenham  said:  "It  is  said  the  omission 
of  such  a  direction  was  owing  to  its  not  having  been  asked  in  the 


883  INJUNCTION  AGAINST  NUISANCE.  §  522 

ency  and  policy,  rather  than  an  essential  condition  and 
basis  of  the  equitable  jurisdiction."^*^  As  such,  the 
grounds  on  which  it  arose  have  largely,  if  not  quite, 
disappeared  with  the  decay  of  all  hostility  of  the  courts 
of  law  against  the  equity  courts  and  the  general  merg- 
ing of  both  law  and  equity  functions  in  the  same  courts. 
The  rule,  however,  still  persists  in  most  jurisdictions 
in  which  it  has  not  been  abrogated  by  statute.^*^     It  has 

court  below;  but  it  is  the  duty  of  the  court  to  give  such  direction, 
whether  it  be  asked  for  or  not.  The  proper  office  of  the  court,  upon 
an  application  of  this  kind,  is  not  to  ascertain  the  existence  of  a 
legal  right,  but  solely  to  protect  the  property,  until  that  right  can 
be  determined  by  the  jurisdiction  to  which  it  properly  belongs,  it 
is  the  duty  of  this  court  to  confine  itself  within  the  limits  of  its 
own  Jurisdiction;  and,  therefore,  it  is  a  fundamental  error  in  an  order 
of  this  kind  to  assume  finally  to  dispose  of  legal  rights,  and  not  to 
confine  itself  to  protecting  the  property  pending  the  adjudication  of 
those  rights  by  a  court  of  law."  Thia  extract  shows  clearly  the 
ground  on  which  the  rule  is  based. 

59  1  Pom.  Eq.  Jur.,  §  252. 

60  Earl  of  Kipon  v.  Hobart,  3  Mylne  &  K.  169;  Mayor  of  Car- 
diff V,  Cardiff  etc.  Co.,  4  De  Gex  &  J.  596;  Elmhurst  v.  Spencer,  2 
Macn.  &  G.  45;  Van  Bergen  v.  Van  Bergen,  3  Johns.  Ch.  282,  8  Am. 
Dec.  511;  Irwin  v.  Dixion,  50  U.  S.  (9  How.)  10,  13  L.  ed.  25;  Kings- 
bury V.  Flowers,  65  Ala.  479,  39  Am.  Rep.  14;  Tracy  v.  Le  Blanc, 
89  Me.  304,  36  Atl.  399;  Green  v.  Lake,  54  Miss.  540,  28  Am.  Rep. 
378;  Burnham  v.  Kempton,  44  N.  H.  78;  Hinchman  v.  Paterson,  17 
N.  J.  Eq.  75,  86  Am.  Dec.  252;  Walts  v.  Foster,  12  Or.  247,  7  Pac. 
24;  Rhea  v.  Forsyth,  37  Pa.  St.  '503,  78  Am.  Dec.  441;  Wood  v.  Mc- 
Grath,  150  Pa.  St.  451,  24  Atl.  682,  16  L.  R.  A.  715;  Roath  v.  Driscoll, 
20  Conn.  538,  52  Am.  Dec.  352;  Kenuerty  v.  Etiman  Phosphate  Co., 
17  S.  C.  411,  43  Am.  Rep.  607;  Sterling  v.  Littlefield,  97  Me.  479,  54 
Atl.  1108;  Sullivan  v.  Browning  (N.  J.),  58  Atl.  302;  Harrelson  v. 
Kansas  City  etc.  Co.,  151  Mo.  482,  52  S.  W.  368.  See,  however,  Olm- 
sted V.  Loomis,  9  N.  Y.  423,  and  Minke  v.  llopeman,  87  111.  450,  29  Am. 
Rep.  63,  in  which  the  court  of  equity  decided  the  question  of  fact  for 
itself,  without  putting  the  case  on  any  of  the  usual  grounds  for 
taking  it  out  of  the  rule.  In  England  the  rule  is  abolished  by  stat- 
ute, Rolfs  Act,  25  &  26  Vict.,  c.  42  [1862],  for  a  discussion  of  which 
see  Eaden  v.  Firth,  1  Hen.  &  M.  573.  The  Reformed  Procedure  has 
accomplished  the  same  result  in  New  York  and  California:  Corning 
&  Winslow  V.  Troy  etc.  Factory,  40  N.  Y.  191,  39  Barb.  311,  34  Barb. 


S  522  EQUITABLE  REMEDIES.  884 

never  gone  so  far,  however,  as  to  require  the  plaintiff's 
bill  to  be  dismissed  because  the  legal  questions  had  not 
been  determined ;  the  court  may  retain  the  bill  and  pro- 
cure their  ascertainment  by  directing  an  issue,  or  an 
action,  or  a  case  stated,  at  law;  basing  its  final  decree 
upon  the  results  thus  reached.®^  In  leaving  the  sub- 
ject it  should  be  noted  that  when  the  bill  is  to  enjoin  a 
threatened,  as  distinguished  from  an  existing,  nuisance, 
from  the  nature  of  the  case  the  requirement  of  a  pre- 
vious trial  at  law  cannot  be  applied.  "No  such  ques- 
tion in  this  case  can  be  tried  at  law,  no  nuisance  ex- 
ists— the  object  of  the  bill  is  to  enjoin  the  defendant 
from  creating  one."®^  From  the  foregoing  discussion 
it  would  appear  that  the  following  is  an  accurate  sum- 
mary of  the  general  rules  of  equity  with  respect  to  the 
requirement  of  a  previous  establishment  of  the  plain- 
tiff's right  at  law.  The  requirement  does  not  apply  at 
all  to  applications  for  temporary  injunctions;  nor  to 
bills  for  permanent  injunctions  on  account  of  irre- 
parable injury,  when  the  defendant  admits  the  plain- 
tiff's right,  or  when  the  right  is  clear  in  favor  of  one 
of  the  i^arties,  though  disputed,  or  when  both  parties 
consent  to  a  trial  of  the  merits  by  the  equity  court ; 
nor  to  bills  for  permanent  injunctions  against  threat- 
ened, as  distinguished  from  existing,  nuisances;  it  docs 
apply  to  all  other  bills  for  permanent  injunctions,  but 

485,  6  How.  Pr.  89;  Pollitt  v.  Long  58  Barb.  20;  Lux  v.  Haggin,  69 
CaL  255,  284,  285,  10  Pac.  674.  And  in  Michigan  also  this  has  been 
done  by  statute:  Comp.  Laws  1871,  §  6377;  Robinson  v.  Baugh,  31 
Mich.  290,  292. 

61  Attorney-General  v.  Cleaver,  18  Ves.  211,  219;  Rigby  v.  Great 
Western  Ry.  Co.,  2  Phill.  Ch.  49,  51;  Davidson  v.  Isham,  9  N.  J.  Eq. 
186;  Clark  v.  Lawrence,  59  N.  C.  83,  78  Am.  Dec.  241. 

62  Bell  V.  Blount,  11  N.  C.  384,  15  Am.  Dec.  526;  Porter  v. 
Whitbam,  17  Me.  294;  Varney  v.  Pope,  60  Me.  192;  Tracy  v.  Lo 
Blane,  89  Me.  304,  36  Atl.  399.  See,  also,  Sterling  v.  Little,  97  Me. 
497,  54  Atl.  1108. 


885  INJUNCTION  AGAINST  NUISANCE.  §  523 

there  is  a  tendency  to  do  away  with  the  requirement  by 
statute  or  judicial  innovation. 

§  523.    Threatened  Nuisances;  Imminent  Danger In  one 

sense  all  injunctions  against  nuisances  are  injunctions 
against  threatened  nuisances.  The  only  purpose  of 
giving  equitable  relief  at  all  is  the  prevention  of  future 
harm;  but  this  harm,  being  future,  cannot  be  a  matter 
of  absolute  certainty  and  therefore  is  only  threatened. 
If,  however,  at  the  time  the  bill  is  filed  a  nuisance  is 
actually  being  committed,  there  will,  in  general,  be  no 
question  that  the  threatened  danger  is  sufficiently  made 
out  to  justify  an  injunction,  if  the  case,  in  its  other  as- 
pects, is  sufficient.  But  when  the  nuisance  has  not  yet 
come  into  existence  and  the  plaintiff,  therefore,  must 
make  out  his  case  of  apprehended  danger  by  other 
means  than  by  pointing  to  an  existing  nuisance,  a  ques- 
tion may  be  raised  concerning  the  rules  by  which  the 
court  is  to  be  guided.  What  is  believed  to  be  a  proper 
statement  of  these  rules  was  thus  formulated  in  a  lead- 
ing English  case:  "There  must,  if  no  actual  damage  is 
proved,  be  proof  of  imminent  danger,  and  there  must 
also  be  proof  that  the  apprehended  statement  will,  if 
it  comes,  be  very  substantial.  I  should  almost  say,  it 
must  be  proved  that  it  will  be  irreparable,  because,  if 
the  danger  is  not  proved  to  be  so  imminent  that  no  one 
can  doubt  that,  if  the  remedy  is  delayed,  the  damage 
will  be  suffered,  I  think  it  must  be  shown  that,  if  the 
damage  does  occur  at  any  time,  it  will  come  in  such  a 
way  and  under  such  circumstances  that  it  will  be  im- 
possible for  the  plaintiff  to  protect  himself  against  it 
if  relief  is  denied  to  him  in  a  quia  timet  action."*^^     In 

63  Fletcher  v.  Bealey,  L.  E.  28  Ch.  D.  688,  per  Pearson,  J.  The 
facts  of  this  case  were  that:  The  defendants  proposed  to  deposir 
refuse  matter  from  their  alkali  mills  on  the  bank  of  a  stream  about 


5  523  EQUITABLE  REMEDIES.  886 

a  word,  the  threatened  danger  must  be  imminent,  and 
of  a  character  to  do  irreparable  injury.  In  a  bill  to 
enjoin  the  erection  of  an  engine  to  pump  water  into  a 
river  which  the  plaintiffs  were  cleansing  and  improv- 

a  mile  and  a  half  above  the  plaintiff's  paper-mills,  in  which  the 
water  from  the  river  was  largely  used.  It  was  admitted  that  after 
a  time  there  would  flow  from  this  "vat  waste"  a  greenish  liquid 
of  such  noxious  character,  that  any  considerable  amount  of  it 
in  the  water  of  the  river  would  be  very  destructive  to  the  plaintiff's 
manufacture,  and  the  court  thought  this  liquid,  in  the  natural  course 
of  events,  might  begin  to  flow  into  the  river  in  the  course  of  ten 
years.  The  plaintiff  also  contended  that  the  bank  where  the  refuse 
matter  was  to  be  deposited  was  in  danger  of  slipping  into  the  river. 
The  defendants  insisted  that  they  were  going  to  take  precautions 
to  provide  against  both  dangers.  The  court  refused  the  injunction. 
On  the  first  ground  the  court  said:  "I  have  no  doubt  that  at  the  end 
of  ten  years  the  water  would  be  sufficiently  polluted  to   do  a  great 

amount   of  injury  to  the  plaintiff I  think  that  in  ten  years' 

time  it  is  highly  probable  that  science  (which  is  now  at  work  on  the 
subject)  may  have  discovered  some  means  for  rendering  this  green 
liquid  innocuous.  But,  even  if  no  such  discovery  should  be  made 
in  that  time,  I  cannot  help  seeing  that  there  are  contrivances,  such 
as  tanks  and  pumps,  and  other  things  of  that  kind,  by  which  the 
liquid  may,  as  the  defendants  say,  be  kept  out  of  the  river  altogether. 
Therefore,  upon  that  ground  alone,  I  do  not  think  the  action  can  be 

supported I  think  the  danger  is  not  imminent,  because  it  must 

be  some  years  before  any  such  quantity  of  the  liquid  will  be  found 
issuing  from  the  heap  as  would  pollute  the  Irwell  to  the  detriment 
of  the  plaintiff."  On  the  claim  that  the  bank  was  in  danger  of 
slipping  the  court  said:  "I  think  that,  if  any  slip  does  take  place, 
there  will  be  some  premonitory  symptoms  which  will  warn  the  plain- 
tiff and  the  defendants,  and  give  the  defendants  time  to  do  what- 
ever may  be  necessary  to  prevent  the  heap  from  slipping  into  thy 
river,  and  at  the  same  time  enable  the  plaintiff,  if  he  should  think  it 
right  to  do  so,  to  bring  an  action  against  the  defendants  on 
the  ground  of  positive  and  imminent  danger  at  that  time." 
On  similar  reasoning  an  injunction  against  a  sewer  was  refused 
when  the  allegation  was  that  it  would  become  noxious  in  three  years: 
Morgan  v.  Binghamton,  102  N.  Y.  500,  7  N.  E.  424;  so,  an  injunction 
was  denied  against  the  erection  of  a  pest-house  by  city  authorities 
when  the  latter  had  taken  no  official  action  looking  to  its  erection, 
the  danger  in  such  case  being  too  remote  to  be  considered  immi- 
nent:  City  of  Kansas  City  v.  Hobbs,  62  Kan,  866,  62  Pac.  324. 


887  INJUNCTION  AGAINST  NUISANCE.  §  523 

ing,  the  court  discussed  the  nature  of  an  imminent  dan- 
ger as  follows:  "If,  indeed,  this  be  a  work  which  not 
only  gives  the  power  of  doing  mischief,  but  cannot  be 
used  or  can  hardly,  in  the  common  course  of  things,  be 
used  without  working  mischief,  if,  in  short,  it  be  a 
thing  which  can  hardly  be  used  without  being  abused, 
the  case  comes  to  be  very  different.  For,  in  matters 
of  this  description,  the  law  cannot  make  over-nice  dis- 
tinctions, and  refuse  the  relief  merely  because  there 
is  a  bare  possibility  that  the  evil  may  be  avoided.  Pro- 
ceeding upon  practical  views  of  human  affairs,  the  law 
will  guard  against  risks  which  are  so  imminent  that  no 
prudent  person  would  incur  them,  although  they  do  not 
amount  to  absolute  certainty  of  damage.  Nay,  it  will 
go  further,  according  to  the  same  practical  and  rational 
view,  and,  balancing  the  magnitude  of  the  evil  against 
the  chances  of  its  occurrence,  it  will  even  provide 
against  a  somewhat  less  imminent  probability  in  cases 
where  the  mischief,  should  it  be  done,  would  be  vast 
and  overwhelming.  Accordingly,  if  it  appeared  that 
the  works  in  question  could  hardly  be  used  without 
damage  to  the  inferior  districts,  I  might  hold  that  erect- 
ing them  was,  in  itself,  a  beginning  of  injury,  though 
there  might  be  a  possibility  of  otherwise  using  them; 
and  if  the  damage,  should  it  happen  at  all,  were  the 
destruction  and  the  subjecting  of  the  lower  districts  to 
a  deluge,  I  might  scrutinize  less  narrowly  the  probabil- 
ity of  the  engines  being  injuriously  worked,"^'*     This 

64  Earl  of  Eipon  v.  Hobart,  3  Mylne  &  K.  169,  176.  The  injunction 
was  refused,  the  court  saying  as  its  conclusion  on  the  score  of  im- 
minence of  the  danger:  "But  upon  carefully  examining  the  evidence, 
and  indeed  it  might  be  enough  to  say,  upon  attentively  considering 
the  nature  of  the  case,  the  kind  of  works  and  of  working  in  question, 
and  the  sort  of  mischief  apprehended,  there  is  no  reason  for  holding 
that  the  danger  is  either  certain  or  very  imminent,  or  that  mischief 
of  a  very  overwhelming  nature  is  likely  to  be  suddenly  done;  or,  in- 


S  524  EQUITABLE  REMEDIES.  888 

passage  states  and  illustrates  clearly  the  principles 
which  guide  the  courts  in  this  matter.  On  the  one  hand, 
a  mere  possibility  of  a  future  nuisance  will  not  support 
an  injunction;  it  must  be  probable.  On  the  other  hand, 
the  plaintiff — who,  of  course,  has  the  burden  of 
proof^^ — does  not  need  to  establish  this  probability  by 
proof  amounting  to  virtual  certainty  that  the  nuisance 
will  occur,  nor  even  proof  which  establishes  it  beyond  a 
reasonable  doubt  ;^^  it  is  sufficient  if  he  show  that  the 
risk  of  its  happening  is  greater  than  a  reasonable  man 
would  incur.  And  the  balance  between  these  two  rules 
will  be  affected  by  the  seriousness  of  the  nuisance 
feared,  the  strength  required  for  the  plaintiff's  proof 
diminishing  somewhat  as  the  greatness  of  the  appre- 
hended damage  increases. 

§  524.  Illustrations. — In  accordance  with  these  rules  it  is 
held  that  a  thing  which  may  or  may  not  be  a  nuisance, 
according  to  the  way  it  is  managed  or  controlled  when 
in  use,  will  not  be  enjoined.  The  plaintiff,  by  showing 
only  the  intended  construction  or  use  of  the  thing  com- 
plained of,  does  not  meet  the  burden  of  proof  that  is  on 
him,  "the  presumption  being  that  a  person  entering  into 
a  legitimate  business  will  conduct  it  in  a  proper  way 
so  that  it  will  not  constitute  a  nuisance."*^'  Hence 
injunctions  have  been  refused  against  the  erection  of  a 

deed,  that  any  serious  injury  can  be  done,  without  time  being  afforded 
for  coming  to  the  court  with  a  case  free  from  the  present  defects." 
See,  also,  Mohawk  Bridge  Co.  v.  Utica  etc.  Co.,  6  Paige,  554,  563. 

65  Columbia  Ave.  etc.  Co.  v.  Prison  Commission  of  Ga.,  92  Fed. 
801;  Maysville  etc.  Co.  v.  Beyersdorfer,  19  Ky.  Law  Rep.  1212,  43 
S.  W.  254;  Lambert  v.  Alcorn,  144  111.  313,  331,  33  N.  E.  53,  21  L.  R. 
A.  611. 

66  Owen  V.  Phillips,  73  Ind.  284. 

67  Pope  V.  Bridprewater,  52  W.  Va.  252,  43  S.  E.  87.  Compare  West 
V.  Ponca  City  Milling  Co.   (Okla.),  79  Pac.   100. 


889  INJUNCTION  AGAINST  NUISANCE.  S  524 

stable,^*  or  a  planing-mill,^^  or  a  cotton-gin/*'  or  a 
jail,'^^  or  a  coal-chute;''^  the  building  of  a  dam/^  or  an 
embankment;'^*  the  opening  of  a  gas-well ;^^  the  estab- 
lishment of  a  private  burial  ground;''^  the  operation  of 
a  business,  as  of  a  slaughter-house,'^''  or  a  dairy  ;"^  the 
discharge  of  sewage  on  the  plaintiff's  land;"^  or  the 
sale  of  water  for  purposes  of  hydraulic  mining  when 
the  defendant  does  not  know  the  mining  is  to  be  done 
in  a  wrongful   manner;®^    or   the  laying  of   railroad 

68  Kirkman  v.  Handy,  30  Tenn.  (11  Hump.)  406,  54  Am.  Dec,  45 
(livery-stable) ;  Shiras  v.  Ollinger,  50  Iowa,  571,  32  Am.  Kep.  138  (liv- 
ery-stable); St.  James's  Church  v.  Arrington,  36  Ala.  546,  76  Am. 
Dec.  332  (private  stable) ;  Eounsaville  v.  Kohlheim,  68  Ga.  668,  45 
Am.  Eep.  505  (private  stable) ;  Keiser  v.  Lovett,  85  Ind.  240,  44  Am. 
Eep.  10  (private  stable).  In  Kirkman  v.  Handy,  the  court  said: 
"A  livery-stable  in  a  town  is  not  necessarily  a  nuisance  in  itself," 
and  therefore  a  court  of  equity  has  no  jurisdiction  to  restrain  by 
injunction,  either  the  completion,  because  intended  for  that  purpose, 
or  its  appropriation  to  the  purpose  intended. 

69  Dorsey  v.  Allen,  85  N.  C,  358,  39  Am.  Eep.  704. 

70  Eouse  V.  Martin,  75  Ala.  510,  51  Am.  Eep.  463. 

71  Burwell  v.  Vance  County  Commrs.,  93  N.  C.  73,  53  Am.  Eep. 
434. 

72  Dalton  V.  Cleveland  etc.  Ey.  Co.,  144  Ind.  121,  43  N.  E.  130. 

73  Hoke  V.  Perdue,  62  Cal.  545;  Blair  v.  Boswell,  37  Or.  168,  61 
Pac.  341. 

74  Lake  Erie  etc.  Co.  v.  City  of  Fremont,  92  Fed.  721. 

75  Pope  V.  Bridgewater  Gas  Co.,  52  W.  Va.  252,  43  S.  E.  87;  Wind- 
fall Mfg.  Co.  V.  Patterson,  148  Ind,  414,  62  Am.  St.  Eep,  532,  47  N. 
E,  2,  37  L.  E.  A.  381. 

76  Kingsbury   v.   Flowers,   65   Ala.   479,   39   Am.   Eep.   14    (private 
burial   ground);  Ellison   v.    Commissioners   of   Washington,   58   N.    C. 
57,   75  Am.   Dec.   430    (public   cemetery);  Elliott   v.   Ferguson    (Tex. 
Civ.  App.),  83  S,  W,  56  (same), 

77  Beckhan  v.  Brown,  ly  Ky.  Law  Eep.  519,  40  S.  W.  684.  The 
court  in  this  case  said:  "A  business  of  itself  legitimate  should  not  b« 
enjoined  upon  the  sole  ground  that  it  may  contingently  or  eventually 
become  a  nuisance." 

78  McDonough  v.  Eobbens,  1  Mo.  App.  Eep.  78,  60  Mo.  App.  156. 
7»  Vicker  v.  City  of  Durham,  132  N.  C,  880,  44  S,  E.  685. 

80  County  of  Yuba  v.  Cloke,  79  Cal,  239,  21  Pac.  740. 


S  524  EQUITABLE  REMEDIES.  890 

tracks  in  front  of  the  plaintiff's  land;^^  in  every  case 
the  thing  complained  of  may  be  done  in  a  manner  that 
will  cause  no  harm  to  the  plaintiff,  and  the  mere  fact 
that  it  is  to  be  done  is  no  proof  that  it  will  be  done 
wrongfully.  But  if  the  plaintiff  can  show  that  the 
thing  complained  of  will  probably  be  a  nuisance  to  him, 
he  is  entitled  to  an  injunction  appropriately  framed  to 
protect  his  right  that  is  threatened.  Thus,  if  a  struc- 
ture is  being  erected,  and  the  plaintiff  can  show  that 
it  is  to  be  used  in  such  a  way  as  will  probably  be  a 
nuisance  to  him,  he  may  have  this  use  enjoined,  although 
he  may  not  be  able  to  enjoin  the  erection  of  the  struc- 
ture;*^ while  if  the  structure  itself,  without  regard  to 
any  use  of  it,  will  cause  a  nuisance,  the  injunction  will 
forbid  its  erection  at  all.^^     And  if  this  distinction  is 

81  Drake  v.  Hudson  Eiver  etc.  Co..  7  Barb.  508. 

82  Cleveland  v.  Citizens'  etc.  Co.,  20  N.  J.  Eq.  (5  C.  E.  Green)  201; 
Attorney-General  v.  Steward,  20  N.  J.  Eq.  (5  C.  E.  Green)  415;  Ross 
V.  Butler,  19  N.  J.  Eq.  (4  C.  E.  Green)  294,  97  Am.  Dec.  654;  Lake 
Erie  etc.  Co.  v.  Young,  135  Ind.  426,  41  Am.  St.  Rep,  430,  35  N.  E. 
177.  In  Cleveland  v.  Citizens'  etc.  Co.,  supra,  the  bill  was  brought  to 
enjoin  the  erection  of  a  gas  plant  near  the  plaintiffs'  homes.  On  the 
facts  the  court  thought  the  manufacturing  of  gas  might,  or  might 
not,  be  a  nuisance,  according  to  the  way  in  which  it  was  conducted, 
except  as  to  a  process  of  purifying  by  lime,  which  the  court  was  sat- 
isfied would  be  a  nuisance  to  the  plaintiffs,  if  used.  The  injunction 
was  therefore  refused  as  to  the  building  and  the  manufacturing  of 
gas  as  a  whole,  but  granted  against  the  particular  process  of  purifying 
by  lime.  In  Attorney-General  v.  Steward,  supra,  the  bill  was  for  an 
injunction  against  erecting  a  slaughter-house.  Here,  too,  the  court 
was  of  the  opinion  that  the  business  might  be  so  carried  on  as  not 
to  be  a  nuisance.  The  defendants  admitted,  however,  that  they 
might  discharge  the  blood  from  one  hundred  slaughtered  hogs  daily 
into  a  creek  which  flowed  past  plaintiffs'  land  below,  contending  that 
this  would  not  pollute  the  stream.  The  court  thought  it  would  pol- 
lute the  stream;  hence  the  injunction  was  refused  as  to  the  erection 
of  the  building,  and  the  slaughtering,  but  was  granted  to  restrain 
the  defendants  from  permitting  the  blood  to  flow  into  the  creek. 

83  Rochester  v.  Erickson,  46  Barb.  92  (projecting  wall  into  a  nav- 
igable  river);  Bell  v.  Blount,  11   N.   C.  384,  15  Am.  Dec.   526   (mill- 


891  INJUNCTIOxX   AGAINST  NUISANCE.  §  524 

sometimes  disregarded  and  the  structure  as  well  as  the 
wrongful  use  of  it  enjoined,  it  is  doubtless  because  of 
the  fact  that  the  erection  will  be  useless  for  any  other 
purpose  than  the  wrongful  one;  hence  a  strict  limita- 
tion of  the  scope  of  the  injunction  is  not  very  closely 
observed.^*  Thus  the  courts  have  enjoined  the  erection 
of  a  privy  near  plaintiff's  house  ;^^  of  a  toll-gate  ;^^  and 
of  a  powder  magazine.^^  So,  too,  threatened  acts 
which  if  done  would  cause  a  nuisance,  as  the  diversion 
of  water/^  or  discharge  of  sewage  on  the  plaintiff's 
Icind,*'^  or  the  use  of  an  artificial  pond  as  a  place  for 
dumping  mining  debris,^*^    have   been   enjoined.     In   a 

dam,  when  the  pond  collected  by  it  would  very  probably  render  the 
eomuainity  unhealthy). 

8-1  On  this  point  the  court  in  Cleveland  v.  Citizens'  etc.  Co.,  supra, 
said:  "The  application  is  to  restrain  putting  up  the  building,  and 
also  manufacturing  gas.  As  to  the  building  itself,  it  can  be  of  no 
injury  to  anyone  if  no  gas  is  ever  made  in  it.  But  it  is  usual  and 
proper,  where  a  building  or  works  are  being  erected  that  can  only 
be  used  for  a  purpose  that  is  unlawful,  to  restrain  the  erection.  The 
works,  if  erected,  might  tempt  the  owner  to  use  them,  and  it  seems 
like  trifling  to  permit  anyone  to  go  on  with  a  building  which  he  can 
never  be  permitted  to  use."  This  reasoning  could  not  apply,  of 
course,  in  any  case  in  which  the  defendant  wished  to  go  on  with  the 
building  for  some  other  purpose,  if  rightful,  than  the  prohibited  one, 
nor  would  it  seem  to  make  any  difference  that  this  other  purpose  was 
formed  after  the  defendant  learned  he  would  be  enjoined  from  car- 
rying out  his  original  plan. 

85  Miley  v.  O'Hearn,  13  Ky.  Law  Rep.  834,  18  S.  W.  329  (erection 
of  a  privy  ten  feet  from  the  plaintiff's  well  and  thirteen  feet  from 
her  dining  and  bed  rooms.  But,  in  the  same  jurisdiction,  the  erec- 
tion of  a  privy  one  hundred  and  fifty  feet  from  the  plaintiff's  well 
and  dwelling  was  not  enjoined:  Davis  v.  Atkins,  18  Ky.  Law  Eep. 
73,  35  S.  W.  271). 

86  President  etc.  Road  Co.  v.  Anderson,  22  Ky.  Law  Eep.  1626,  61 
B.  W.  13. 

87  Wier's  Appeal,  74  Pa.  St.  230. 

88  Kimberly  v.  Hewitt,  75  Wis.  371,  44  N.  W.  303. 

80  New  York  Cent.  etc.  Co.  v.  City  of  Rochester,  127  N.  Y.  591,  28 
N.  E.  416. 

90  United  States  v.  Lawrence,  53  Fed.  632.     Compare  with  United 


i  525  EQUITABLE  EEMEDIES.  892 

majority  of  the  cases  of  bills  to  enjoin  threatened  nui- 
sances, however,  the  injunction  has  been  refused.  The 
explanation  of  this  is  that  most  nuisances  consist  in 
doing  in  a  wrongful  manner  something  which  is  not 
wrongful  in  itself;  hence  till  it  is  actually  being  done 
in  a  wrongful  way,  the  plaintiff  has  so  heavy  a  task  in 
proving  the  probability  of  its  being  so  done,  that,  in 
general,  he  cannot  meet  it.  The  courts  will  not  grant 
tl^e  injunction  simply  because  it  will  do  no  harm  to  the 
dei'endant;^^  the  plaintiff  must  show  clearly  that  he 
stands  in  need  of  it.®* 

§  52<').  Must  Threatened  Injury  be  Irreparable? — On  the 
second  branch  of  the  rule  quoted  above  concerning  in- 
junctions against  threatened  nuisances,  viz.,  that  the 
injury  must  be  irreparable,  little  needs  to  be  said. 
The  significance  of  it  is,  of  course,  that  it  excludes 
wholly  from  the  class  of  cases  in  which  an  injunc- 
tion may  be  granted  against  a  purely  threatened, 
as  distinguished  from  an  existing,  nuisance,  all  those 
in  which  the  basis  of  the  intervention  of  equity  is  solely 
to  prevent  a  multiplicity  of  suits.  In  favor  of  the  rule 
thus  limited,  it  can  be  said  that  there  is  little,  if  any, 
reason  for  granting  relief  quia  timet  with  the  lack  of 
certainty  that  any  wrong  will  ever  be  done  which  is  in- 
states V.  North  Bloomfield  etfe,  Co.,  53  Fed.  625.  See  further  City  of 
St.  Louis  V.  Knopp  etc.  Co.,  lO-S  U.  S.  €58,  26  L.  ed.  883,  and  Cromp- 
ton  V.  Lea,  L.  E.  19  Eq.  115,  121^,  which  show  that  lack  of  imminence 
of  the  threatened  nuisance  cannot,  in  general,  be  taken  by  demur- 
rer. 

81   Otaheite  Gold  etc.  Co,  v.  Dean,  102  Fed.  929. 

92  Adams  v.  Michael,  38  Md.  123,  17  Am.  Eep.  516;  Branch  Turn- 
pike Co.  V.  Yuba,  13  Cal.  190 j  Sayre  v.  Mayor  etc.  Newark,  58  N.  J. 
Eq.  (13  Dick.)  136,  148,  42  Atl.  1068.  In  Gallagher  v.  Flury,  99  Md. 
181,  57  Atl.  672,  it  is  said  that  threatened  nuisances  only  of  things 
nuisances  per  se  will  be  enjoined,  but  this  ig  clearly  an  erroneous 
view,  both  in  reason  and  by  the  authorities. 


893  INJUNCTION  AGAINST  NUISANCE.  S  526 

herent  in  such  cases,  except  when  there  is  strong  ground 
for  believing  that,  unless  quia  timet  relief  is  given,  an 
adequate  remedy  will  be  impossible  should  the  antici- 
pated wrong  occur.  Negatively,  the  fact,  that  almost 
all  the  cases  of  bills  for  injunction  against  threatened 
nuisances  conform  to  the  restricted  rule,  supports  this 
reasoning.  There  is,  however,  some  American  authority 
the  other  way.®* 

§  526.  Damage  Necessary  to  Justify  an  Injunction. — The 
question  what  amount  or  character  of  damage  is  neces- 
sary to  sustain  an  injunction  will  require  only  brief 
treatment,  as,  in  the  main,  the  question,  when  it  arises, 
is  settled  by  simply  applying  the  rule  which  is  applied 
on  the  same  point  in  an  action  at  law.  If  the  injury 
is  irreparable,  or  such  that  the  damages  given  by  a 
jury  would  be  conjectural,  it  is  clear,  of  course,  that 
the  question  of  the  extent  of  damage  will  not  need  to 
be  gone  into.  The  class  of  cases,  then,  in  which  it  will 
arise  is  chiefly,  if  not  exclusively,  that  in  which  the 
reason  for  coming  into  equity  is  to  put  an  end  to  a  per- 
manent or  continuing  nuisance  in  order  to  avoid  mul- 
tiplicity of  suits.  In  this  situation  the  courts  generally 
require  no  more,  but  just  the  same,  damage  that  will 
sustain  an  action  at  law.  "The  result  of  a  careful  re- 
view of  the  evidence  upon  my  mind,"  said  the  court 
in  a  leading  American  case,^*  "is  to  lead  me  to  the  con- 

93  Whitfield  V.  Eogers,  26  Miss.  (4  Cush.)  84,  59  Am.  Dec,  244. 
See,  also,  Lake  Erie  etc,  Co.  v.  Young,  135  Ind.  426,  41  Am.  St,  Eep. 
i30,  35  N.  E.  177. 

94  Per  Pitney,  V.  C,  in  Hennessy  v.  Cannony,  50  N.  J.  Eq.  616, 
25  Atl.  374.  To  the  same  effect  are  Salvin  v.  North  Brancepeth  Coal 
Co.,  L.  R.  9  Ch.  App.  705,  in  which  the  court  applied  the  rule  given 
to  the  jury  in  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642, 
which  was  an  action  at  law  for  damages;  Bostock  v.  North  Stafford- 
shire By.,  5  De  Gex  &  S.  584;  Broder  v.  Saillard,  L.  E.  2  Ch,  D.  692; 
Proprietors  of  Me.  "Wharf  v.  Proprietors  etc.  Wharf,  85  Me.  175,  27 


I  526  EQUITABLE  EEMEDIES.  894 

elusion  that  the  degree  of  injury  is  such  as  to  entitle 
the  complainant  to  damages  in  an  action  at  law,  with 
the  result  that  he  is  entitled  to  an  injunction  in  this 
court."  This  is  the  only  logical  result  of  the  rule  that 
to  prevent  multiplicity  of  suits  is  a  head  of  equity  jur- 
isdiction ;  to  hold  otherwise  would  be  to  say  that  equity 
will  prevent  multiplicity  of  suits  only  when  the  dam- 
ages are  according  to  some  standard  of  the  equity 
courts,  and  this  would  be  to  do  away  with  just  so  much 
of  the  salutary  result  of  the  rule  as  was  affected  by  ap- 
plying this  different  standard.  It  follows  equally 
that  in  the  class  of  nuisances  in  which  an  action  at  law 
may  be  maintained  without  showing  any  damages,  be- 
cause a  legal  right  is  invaded,  as  the  interference  with 
water  rights,  or  the  right  to  lateral  support,  or  over- 
flowing the  plaintiff's  land,  and  the  like,  that  equity 
should  also  enjoin  on  the  same  showing;  and  such  is  the 
rule.^^ 

Atl.  93;  Pach  v.  Geoffrey,  67  Hun,  401,  22  N.  Y.  Supp.  275,  affirmed 
in  143  N.  Y.  661,  39  N.  E.  21;  Crump  v.  Lambert,  L.  E.  3  Eq.  409. 
Conversely,  an  injunction  was  refused  in  Farrell  v.  New  York  Steam 
Co.,  23  Misc.  Rep.  726,  53  N.  Y.  Supp.  55,  because  the  plaintiff  did 
not  show  that  the  acts  would  amount  to  sufficient  to  maintain  an 
action  at  law.  The  bill  was  to  enjoin  the  operation  of  a  steam  plant. 
The  injunction  was  refused,  the  court  saying:  "The  evidence  does 
not  show  that  the  acts  of  the  defendant  have  materially  lessened 
the  plaintiff's  enjoyment  of  his  property.  By  this  I  mean  those  acts 
of  the  defendant  of  which  the  plaintiff  has  the  legal  right  to  com- 
plain." But  see  Smith  v.  Ingersoll-Sergeant  etc.  Co.,  12  Misc.  Rep. 
5,  33  N.  Y.  Supp.  70,  reversing  7  Misc.  Rep.  374,  27  N.  Y.  Supp.  907, 
in  which  the  language  of  the  court  is  not  consistent  with  the  above 
cases. 

95  Union  etc.  Co.  v.  Dangberg,  81  Fed.  73  (diversion  of  water); 
Potter  V.  Howe,  141  Mass.  357,  6  N.  E.  233  (flowing  land);  Learned 
V.  Castle,  78  Cal.  454,  18  Pac.  872,  21  Pac,  11  (flowing  land;  cf.  Jacob 
V.  Day,  111  Cal.  571,  44  Pac.  243) ;  Trowbridge  v.  True,  52  Conn.  190, 
52  Am.  Rep.  579  (interference  with  lateral  support  enjoined,  though 
damages  trifling).  Contra,  McMaugh  v.  Burke,  12  E.  I.  499.  For 
further  cases  on  injunction  to  prevent  interference  with  water  rights, 
see  post,  chapter  XXVL 


895  INJUNCTION  AGAINST  NUISANCE.  §  5:i7 

§  527.  Criminal  and  Statutory  Nuisances — The  jurisdic- 
tion of  equity  over  nuisance  is  essentially  a  civil  juris- 
diction. "The  plaintiff  insisted  that  it  was  illegal  for 
Roman  Catholics  to  ring  and  toll  bells  in  a  steeple  an- 
nexed to  their  place  of  worship/'  said  the  court  in 
Soltau  V.  De  Held.^®  "It  appears  to  me  that  whether 
that  be  so  or  not,  is  perfectly  immaterial  in  this  case; 
because,  if  it  be  illegal,  I  am  not  to  grant  an  injunction 
to  restrain  an  illegal  act  merely  because  it  is  illegal. 
I  could  not  grant  an  injunction  to  restrain  a  man  from 
smuggling,  which  is  an  illegal  act.  If  it  be  illegal,  the 
illegality  of  it  is  no  ground  for  my  interfering."  In  ac- 
cordance with  this  language  the  law  is  settled  that  an 
act  will  not  be  enjoined  as  a  nuisance  merely  because 
it  is  criminal,  even  though  prohibited  by  statutes, 
whether  at  the  suit  of  a  private  person^^  or  of  the  pub- 

86  Per  Cranworth,  V.  C,  2  Sim.,  N.  S.,  133. 

87  Sparhawk  v.  Union  etc.  By.  Co.,  54  Pa.  St.  401;  Finegan  v.  Al- 
len, 46  111.  App.  553;  Sheldon  v.  Weeks,  51  111.  App.  314;  Eice  v. 
Jefferson,  50  Mo.  App.  464;  Smith  v.  Loekwood,  13  Barb.  209;  Tiede 
V.  Schneidt,  99  Wis.  201,  74  N.  W.  798;  City  of  Utica  v.  Utica  Tel. 
Co.,  24  App.  Div.  361,  48  N.  Y.  Supp.  916.  See,  however,  First  Nat. 
Bank  of  Mt.  Vernon  v.  Sarlls,  129  Ind.  201,  28  Am.  St.  Kep.  185,  28 
N.  E.  434,  13  L.  R.  A.  481  (removal  of  wooden  building  within  fire 
limits,  against  city  ordinance) ;  Kaufman  v.  Stein,  138  Ind.  49,  46 
Am.  St.  Eep.  368,  37  N.  E,  333  (same  as  preceding  case) ;  Schulze  v. 
Corporation  of  Galasheils,  [1895]  App.  Cas.  656;  Dubos  v.  Dreyfous, 
52  La.  Ann.  1117,  27  South.  663  (failure  to  ventilate  stables,  as  re- 
quired by  ordinance);  State  v.  Crawford,  28  Kan.  726,  42  Am.  Rep. 
182.  In  this  last  case  the  court  uttered  the  following  dictum:  "Ws 
would  think  that  every  place  where  a  public  statute  is  openly,  pub- 
licly, repeatedly,  continuously,  persistently  and  intentionally  violated, 
is  a  public  nuisance."  In  the  two  Indiana  cases,  also,  the  court 
seemed  to  think  that  the  effect  of  the  statute  was  to  make  the  prohib- 
ited act  a  nuisance.  In  Griswold  v.  Brega,  160  111.  490,  52  Am.  St. 
Eep.  350,  43  N.  E.  864,  af&rming  57  111.  App.  554,  the  required  stat- 
utory consent  of  property  owners  to  allow  a  wooden  building  to  be 
brought  within  the  fire  limits  was  procured  by  fraud  on  some  of  them, 
and  on  this  account  the  court  enjoined  the  defendant  from  bringing 
in  the  building. 


§  527  EQUITABLE  REMEDIES.  896 

lic.^^  The  converse  of  this  is  not  true ;  indeed  it  is  well 
established  that  it  is  no  defense  to  a  bill  to  enjoin  that 
which  is  a  nuisance  to  show  that  it  is  also  a  crime  ;^®  if 
the  law  were  otherwise,  public  nuisances  which  at  com- 
mon law  are  public  offenses,  could  never  be  enjoined. ^"^^ 
A  more  difficult  question  is  raised  when  the  legislature 
makes  an  act  a  nuisance  which  was  not  such  at  common 
law,  and  provides  that  it  shall  be  subject  to  injunction 
in  equity.  Is  such  legislation  consistent  with  the  pro- 
vision of  the  federal,  and  most  of  the  state,  constitu- 
tions that  the  right  of  trial  by  jury  shall  be  preserved 
inviolate?  It  is  held  generally,  if  not  universally,  that 
there  is  nothing  unconstitutional  in  such  statutes.  The 
jury  trial  guarded  by  the  constitutional  provision  is 
that  which  was  required  by  the  principles  of  the  com- 
mon law.  Jurisdiction  to  enjoin  future  acts  in  the  na- 
ture of  nuisances  has  always  been  a  matter  for  the 
equity  courts,  and  as  such  has  never  required  a  jury 
trial;  hence  an  enlargement  of  this  jurisdiction  does  not 

98  Village  of  St.  John  v,  McFarlan,  33  Mich.  72,  20  Am.  Eep.  671 
(erection  of  wooden  building  contrary  to  a  village  ordinance);  Inc. 
Town  of  Rochester  v.  Walters,  27  Ind,  App.  194,  60  N.  E.  1101  (same 
as  preceding  case);  Village  of  New  Rochelle  v.  Lang,  75  Hun,  608, 
27  N.  Y.  Supp.  600  (same  as  preceding  case) ;  Pres.  etc.  Village  of 
Waupun  V.  Moore,  34  Wis.  450,  17  Am.  Rep.  446  (same  as  preceding 
case);  Manor  Casino  v.  State  (Tex.  Civ.  App.),  34  S.  W.  769  (sale 
of  intoxicating  liquor  in  violation  of  statute) ;  Borough  of  Cambridge 
Springs  v.  Moses,  22  Pa.  Co.  Ct.  Eep.  637. 

99  United  States  v.  Debs,  64  Fed,  724,  753;  People  v.  Truckee  Lum- 
ber Co.,  116  Cal,  397,  58  Am,  St.  Rep.  183,  48  Pac.  374;  Barrett  v. 
Mt,  Greenwood  etc.  Assn.,  159  111.  385,  50  Am.  St.  Rep.  168,  42  N.  E. 
891,  31  L.  R.  A.  109;  People's  Gas  Co.  v.  Tyner.  131  Ind.  277,  31  Am. 
St.  Rep.  433,  31  N.  E.  59,  16  L.  R.  A.  443;  Columbian  Athletic  Club 
V.  State,  143  Ind.  98,  52  Am.  St.  Rep.  407,  40  N.  E.  915,  28  L.  E.  A. 
727;  Hamilton  v.  Whitridge,  11  Md.  128,  69  Am.  Dec.  184;  State  v. 
Saunders,  66  N.  H.  39,  25  Atl.  588,  18  L.  R.  A.  646;  North  Bloomfiel.l 
etc.  Co.  V.  United  States,  88  Fed,  664,  32  C.  C.  A.  84,  affirming  81  Fed. 
243. 

100  State  V.  Crawford,  28  Kan,  726,  42  Am.  Eep.  182, 


897  INJUNCTION  AGAINST  NUISANCE.  §  528 

trench  on  tlie  requirement  for  preserving  jury  trial.*®' 
If  it  could  be  shown  that  the  purpose  of  the  act  were  to 
punish  or  make  compensation  for  past  acts  in  equity 
without  jury  trial,  the  decision  might  be  dilferent.*"^ 

§  528.  The  Defendant's  Motive. — How  far  the  defend- 
ant's motive  may  be  of  importance  in  cases  of  nuisance 

101  Littleton  v.  Fritz,  65  Iowa,  488,  54  Am.  Kep.  19,  22  N.  W.  641 
(keeping  a  saloon) ;  State  v.  Saunders,  66  N.  H.  39,  25  Atl.  588,  18  L. 
R.  A.  646  (same  as  preceding  case);  Davis  v.  Auld,  96  Me.  559,  53  Atl. 
118;  Eilenbecker  v.  Dist.  Ct.  of  Plymouth  Co.,  134  U.  S.  31,  10  Sup. 
Ct.  424,  33  L.  ed.  801.  In  the  lust  case  cited  the  plaintiff  haviug 
been  enjoined  from  violating  the  liquor  law,  was  afterwards  found  . 
guilty  of  contempt  for  disobeying  the  injunction  and  sentenced  to 
pay  $500  or  go  to  prison  for  three  months.  He  carried  the  case  to 
the  supreme  court,  because,  among  other  things,  the  equity  court 
had  imposed  this  punishment  upon  him  without  trial  by  jury.  In 
affirming  the  decision  of  the  state  court  it  was  said:  "If  the  objec- 
tion is  that  it  authorizes  a  proceeding  in  the  nature  of  a  suit  in 
equity  to  suppress  the  manufacture  and  sale  of  intoxicating  liquors, 
which  are  by  law  prohibited,  and  to  abate  the  nuisance  which  the 
statute  declares  such  acts  to  be,  wherever  carried  on,  we  respond 
that,  so  far  as  at  present  advised,  it  appears  to  us  that  all  the  pow- 
ers of  a  court,  whether  at  common  law  or  in  chancery,  may  be  called 
into  operation  by  a  legislative  body  for  the  purpose  of  suppressing 
the  objectionable  traffic.  And  we  know  of  no  hindrance  in  the  con- 
stitution of  the  United  States  to  the  form  of  proceedings,  or  to  the 
court  in  which  this  remedy  shall  be  had.  Certainly  it  seems  to  us  tu 
be  quite  as  wise  to  use  the  processes  of  the  law  and  the  powers  of 
the  court  to  prevent  the  evil  as  to  punish  the  offense  as  a  crime  after 
it  has  been  committed."  A  city  sheltering  itself  under  authority 
of  law  from  liability  for  acts  which  between  private  individuals 
would  be  a  nuisance  must  show  an  express  or  clearly  implied  authority 
to  do  such  acts:  Hill  v.  Mayor  etc.  N.  Y.,  139  N.  Y.  495,  34  N. 
E.  1090,  reversing  63  Hun,  633,  18  N.  Y.  Supp.  399;  Spring  v.  Dela- 
ware,  L.  &  W.  E.  Co.,  88  Hun,  385,  34  N.  Y,  Supp.  810. 

102  State  V.  Saunders,  66  N.  H.  39,  25  Atl.  588,  594,  18  L.  R.  A. 
646.  It  is  not  a  violation  of  such  statutes  for  an  officer  to  sell  in- 
toxicating liquors  under  execution,  it  the  sale  is  an  honest  one  for 
the  benefit  of  the  plaintiff  in  execution  under  proper  process;  it  is  a 
violation,  subject  to  injunction,  if  the  sale  by  the  officer  is  a  collu- 
Bive  attempt  to  evade  the  statute:  Fears  v.  State,  102  Ga.  274.  29  S. 
E.  463.     On  the  subject  of  this  section,  see  also,  ante,  chapter  XXI. 

Equitable  Kemedies,  Vol.  I — 57 


S  528  EQUITABLE  REMEDIES.  898 

is,  strictly,  a  matter  of  substantive  law,  and  not  of  the 
equitable  remedy.  But,  inasmuch  as,  in  a  narrow 
range  of  cases,  the  question  has,  of  late  years,  received 
considerable  attention,  largely  in  applications  for  in- 
junctions, and  as  it  is  likely  to  arise  in  the  future  in 
similar  applications,  rather  than  in  actions  at  law,  be- 
cause the  equitable  remedy  is  the  only  one  to  afford  ade- 
quate redress,  it  may  be  well  briefly  to  treat  of  it  here. 
If  one  draws  off  percolating  water  and  thus  dries  up 
his  neighbor's  well ;  or  erects  a  high  fence  on  his  own 
land  which  shuts  off  the  light  from  the  house  of  his 
neighbor  (who  has  no  easement  of  light  and  air),  in  both 
cases  acting  from  a  malevolent  motive  to  injure  the 
neighbor,  and  not  otherwise  to  benefit  himself  than  by 
causing  the  injury,  has  the  neighbor  any  legal  cause 
for  complaint?  In  this  form,  and  almost  exclusively 
on  the  above  facts,  the  question  has  arisen.  In  cases 
of  percolating  water  there  are  dicta  from  the  earliest 
cases  down,  that  such  water  cannot  be  drawn  off  for  the 
sole  and  malicious  purpose  of  injuring  one's  neigh- 
J3QJ.103  rj^jjg  cases  in  which  the  courts  have  actually 
decided  the  question  have  been  mainly  on  application 
for    injunctions,    which  -have    been    granted. ^^*     The 

103  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  387;  Greenleaf  v. 
Francis,  18  Pick.  117;  Wheatley  v.  Baugh,  25  Pa.  St.  528,  64  Am. 
Dec.  721;  Cbesley  v.  King,  74  Me.  164,  43  Am.  Rep.  569;  Roath  v. 
DriscoU,  20  Conn.  533,  52  Am.  Dec.  352.  Contra^  Frazier  v.  Browa, 
12  Ohio  St.  294. 

104  Forbell  v.  City  of  New  York,  164  N.  Y.  522,  79  Am.  St.  Rep. 
666,  58  N.  E.  644,  51  L.  R.  A.  695;  Stillwater  Water  Co.  v.  Farmer, 
89  Minn.  58,  99  Am.  St.  Rep.  541,  93  N.  W.  907,  60  L.  R.  A.  875; 
Barclay  v.  Abraham,  121  Iowa,  €19,  100  Am.  St.  Rep.  365,  96  N.  W. 
1080.  Contra,  Huber  v.  Merkel,  117  Wis.  355,  98  Am.  St.  Rep.  355, 
94  N.  W.  354.  In  actions  at  law  the  same  thing  has  been  held  in 
Bassett  v.  Salisbury  Mfg.  Co.,  43  N.  H.  569,  82  Am.  Dec.  179;  Swett 
V.  Cutts,  50  N.  H.  439,  9  Am.  Rep.  276.  Contra,  Phelps  v.  Nowlan. 
72  N.  Y.  39,  28  Am.  Rep.  93.  In  Forbell  v.  City  of  New  York,  svpra, 
it  was  held   that  the  owner  of  land   could   not  draw  the  percolating 


899  INJUNCTION  AGAINST  NUISANCE.  {  528 

ground  of  decision,  however,  is  narrower  than  the  mere 
impropriety  of  the  defendant's  motive;  instead  it  takes 
the  form  of  a  rule  of  property  that  one  may  collect  and 
consume  percolating  water  only  for  beneficial  use  on 
the  land  on  which  it  is  collected ;  collection  of  it  for  any 
other  purpose  may  be  enjoined  by  any  person  affected 
injuriously.  Thus  expressed  it  is  no  more  drastic  a 
limitation  of  property  rights  than  are  all  the  rules 

water  into  wells  for  the  purpose  of  selling  it  for  consumption  off  the 
land.  In  Barclay  v.  Abraham,  supra,  and  Stillwater  Co.  v.  Farmer, 
supra,  it  was  held  that  one  could  not  collect  percolating  water  on  his 
own  land  and  waste  it  to  the  injury  of  others.  In  the  latter  of  these 
cases  the  court,  per  Collins,  J.,  said:  "In  holding  as  we  do,  and  in 
laying  down  a  rule  which  confessedly  is  something  of  a  departure 
from  the  general  doctrine  found  in  the  books,  and  is  an  advanced 
position,  we  are  not  really  discarding  the  maxim,  cujus  est  solum  eju^ 
est  usque  ad  coelmn,  or  doing  violence  to  any  of  the  reasons  which 
have  been  given  for  it.  We  are  not  involving  any  set  of  legal  rules 
in  hopeless  uncertainty,  and  therefore  rendering  their  application 
practically  impossible,  for  the  rule  which  we  adopt  is  not  only  just, 
but  is  exceeding  plain,  certain,  practical,  and  easy  to  apply  to  real 
con  '.itions.  Nor  will  our  recognition  of  the  doctrine  of  correlative 
rights  interfere  in  any  manner  with  material  improvements,  to  the 
detriment  of  the  state.  On  the  contrary,  it  will  tend  to  promota 
the  prosperity  and  general  welfare  of  all  citizens  whose  necessities 
bring  them  within  its  influence.  Nor  are  we  entirely  without  author- 
ity for  such  a  doctrine.  We  therefore  formulate  and  announce  the 
rule  governing  the  facts  here  to  be  that,  except  for  the  benefit  and 
improvement  of  his  own  premises,  or  for  his  beneficial  use,  the 
owner  of  land  has  no  right  to  drain,  collect,  or  divert  percolating 
waters  thereon,  when  such  acts  will  destroy  or  materially  injure  the 
spring  of  another  person,  the  waters  of  which  spring  are  used  by  the 
general  public  for  domestic  purposes."  In  Barclay  v.  Abraham, 
supra,  the  court,  per  Ladd,  J.,  said:  "The  prevention  of  carrying  the 
water  from  the  land  of  the  owner  for  the  purposes  of  commerce  or 
waste  cannot  retard  the  improvement  of  the  land  itself,  and  there 
is  no  just  ground  for  tolerating  such  diversion  when  the  direct  re- 
sult is  to  deprive  the  adjoining  land  owners  by  the  incidental  drainage 
of  their  land  of  a  supply  of  water  from  the  same  natural  reservoir. 
This  would  be  extracting  the  subterranean  water  from  the  adjoining 
land  to  its  injury,  without  any  counter  benefit  to  the  land  through 
which  taken." 


f  528  EQUITABLE  BEMEDIES.  900 

which  ordinarily  define  a  nuisance;  indeed,  it  is  doubt- 
ful if  it  goes  so  far,  while  the  beneficial  results  to  flow 
from  it  are  obvious.  In  dealing  with  the  cases  of  "spite 
fences"  and  similar  erections,  the  courts  have  made 
them  turn  on  the  malevolent  motive  of  the  defendant  in 
erecting  the  structure.  The  objections  which  have  been 
made  to  such  a  criterion  of  legal  rights  and  liabilities 
have  been  expressed  as  follows:  "To  permit  a  man  to 
cause  a  certain  injurious  effect  upon  the  premises  of  his 
neighbor  by  the  erection  of  a  structure  on  his  premises 
if  such  structure  is  beneficial  or  ornamental,  and  to  pro- 
hibit him  from  causing  the  same  effect  in  case  the  struc- 
ture is  neither  beneficial  nor  ornamental,  but  erected 
from  motives  of  pure  malice,  is  not  protecting  a  legal 
right,  but  is  controlling  his  moral  conduct."^''^  It 
would  seem  clear,  however,  there  is  neither  justice  nor 
expediency  in  allowing  such  things  as  the  building  of 
a  spite  fence  to  be  done,  unless  the  preservation  of  prop- 
erty rights  demands  it.  "It  is  plain  that  the  right  to 
use  one's  property  for  the  sole  purpose  of  injuring 
others  is  not  one  of  the  immediate  rights  of  ownership; 
it  is  not  a  right  for  the  sake  of  which  property  is  rec- 
ognized by  law,  but  is  only  a  more  or  less  necessary  in- 
cident of  rights  which  are  established  for  very  dif- 
ferent ends."^"^  And,  however  forcible  the  objections 
may  be  to  founding  relief  upon  the  defendant's  im- 
moral motive  alone,  it  seems  clear  that  here  the  ac- 
tual interference  with  the  defendant  in  the  use  of  his 
property  would  be  less  radical  than  in  most  cases  of 
nuisance.  There  he  is  not  allowed  to  make  a  use  of  his 
premises  which  is  generally  beneficial  both  to  himself 

105  Letts  V.  Kessler,  54  Ohio  St,  73,  42  N.  E.  765,  40  L.  R.  A.  177, 
overruling    7  Ohio  Cir,  Eep.  108. 

106  Per  Holmes,  J.,  in  Eideout  v.  Knox,  148  Mass,  368,  12  Am.  St. 
Bep.  560,  19  N.  E.  390,  2  L.  E.  A.  81. 


901  INJUNCTION  AGAINST  NUISANCE.  §  528 

and  to  society;  here  the  use  he  is  making  is  beneficial 
to  neither  and  may  be  equally  harmful  with  recognized 
nuisances  to  the  plaintiff.  As  a  result  of  the  antago- 
nistic influences  that  bear  on  the  case  in  this  form,  the 
authorities  are  divided.  Partly  by  judicial  declara- 
tion/""^  but  more  largely  by  virtue  of  statutes,^ *^*  the 
weight  of  authority  is  that  structures  of  the  kind  un- 
der discussion  are  unlawful  and  their  maintenance  may 
be  enjoined.  But  the  malevolent  motive  must  in  such 
cases  be  the  dominant  one,  such  that  even  if  no  other 
were  present  it  would  induce  the  act  complained  of; 
it  will  not  do  if  it  is  simply  present  together  with 
other  motives  which  are  worthy.^*^^  Some  courts,  how- 
ever, have  declined  to  adopt  even  this  restricted  doc- 

107  Burke  v.  Smith,  69  Mich.  3S0,  37  N.  W.  838;  Flaherty  v.  Moran, 
81  Mich.  52,  2  Anu  St.  Eep.  510,  45  N.  W.  381,  8  L.  E.  A.  183;  Kirk- 
wood  V.  Finegan,  95  Mich.  543,  55  N.  W.  457;  Peck  v.  Koe,  110  Mich. 
52,  67  N.  W.  1080. 

108  Connecticut.— Gen.  Stats.,  ed.  1902,  §§  1013,  1107.  Injunctions 
allowed  in  Harbison  v.  White,  46  Conn.  106;  Whitlock  v.  Uhle,  75 
Conn.  423,  53  Atl.  891. 

Maine. — Freeman's  Supplement,  c.  17,  §  5.  Construed  in  Lord  v. 
Langdon,  91  Me.  221,  39  Atl.  552. 

Massachusetts. — Acts  and  Eesolves,  1887,  c.  348.  Actions  for  dam- 
ages allowed  in  Eideout  v.  Knox,  148  Mass.  368,  12  Am.  St.  Eep.  560, 

19  N.  E.  390,  2  L.  E.  A.  81;  Smith  v.  Morse,  148  Mass.  407,  19  N.  E. 
393;  not  allowed  in  Spaukling  v.  Smith,  162  Mass.  543,  39  N.  E.  189. 

New  Hampshire.— Stats.,  ed.  1902,  c.  143,  §§  28,  29,  30.  Construed 
in  Hunt  v.  Coggin,  66  N.  H.  140,  20  Atl,  250. 

Vermont. — Laws  of  Vermont,  1886,  No.  84. 

Washington. — 2  Hill's  Ann.  Stats.  &  Codes,  §  268;  Ballinger's 
Ann.  Codes,  §  5433.  Injunction  allowed  in  Karasek  v.  Peier,  22 
Wash.  419,  61  Pac.  33,  50  L.  E,  A.  345, 

109  Kuzniak  v.  Kozminski,  107  Mich.  444,  61  Am.  St.  Eep.  344, 
65  N.  W.  275;  Ladd  v.  Flynn,  90  Mich.  181,  51  N.  W.  203;  Eideout 
V.  Knox,  148  Mass.  368,  12  Am.  St.  Eep.  560,  19  N.  E.  390,  2  L.  E,  A. 
81;  Gallegher  v.  Dodge,  48  Conn.  387,  40  Am.  Eep.  182;  Lord  v. 
Langdon,  91  Me.  221,  39  Atl.  552;  see  Hunt  v.  Coggin,  66  N.  H.  140, 

20  Atl.  250. 


§  528  EQUITABLE  REMEDIES,  902 

trine,  and,  preferring  the  liardsliip  of  individual  cases 
to  a  ground  of  jurisdiction  considered  to  be  so  fallible 
as  the  defendant's  immoral  motive,  have  refused  re- 
lief.^ ^*^  It  may  be  permissible  to  suggest  that  if  the 
lead  of  the  cases  on  percolating  water  were  followed, 
and  the  decisions  based  on  the  reasoning  that  a  man's 
property  right  in  the  passage  of  light  and  air  over  his 
land  is  not  an  absolute  right  to  interfere  with  it  ar- 
bitrarily as  he  chooses,  but  only  for  purposes  useful  and 
beneficial  to  him  in  connection  with  the  land  itself,  the 
unfortunate  criterion  of  bad  motive  would  be  removed, 
no  harmful  restriction  of  property  rights  would  be 
created,  and  the  ends  of  justice  would  be  furthered. 

110  Mahan  v.  Brown,  13  Wend.  261,  28  Am.  Dec.  461;  Letts  v. 
Kessler,  54  Ohio  St.  73,  42  N.  E.  765,  40  L.  R.  A.  177,  overruling 
Kessler  v.  Letts,  7  Ohio  Cir.  Eep.  108;  Metzker  v.  Hoehrein,  107  Wis. 
267,  81  Am.  St.  Eep.  841,  83  N.  W.  308,  50  L.  E.  A.  305;  Bordeaux 
V.  Greene,  22  Mont.  254,  74  Am.  St.  Eep.  600,  56  Pac.  218;  Falloon 
V,  Schilling,  29  Kan.  292,  44  Am.  Rep.  642.  See,  also.  Guest  v. 
Eeynolds,  68  111.  478,  18  Am.  Eep.  570;  Housel  v.  Conant,  12  111.  App. 
259.  In  Burke  v.  Smith,  69  Mich.  380,  37  N.  W.  838,  Mahan  v.  Brown, 
supra,  was  distinguished  on  the  ground  that  the  existence  of  the 
doctrine  of  ancient  lights  in  New  York  made  the  holding  necessary  in 
order  that  a  land  owner  may  be  able  to  prevent  an  easement  of 
light  over  his  land  from  arising. 

The  question  of  allowing  natural  gas  to  escape  on  one's  land  has 
given  rise  to  a  similar  discussion  to  that  concerning  air  and  per- 
colating water.  See  Ohio  Oil  Co.  v.  State  of  Indiana,  150  Ind.  G98, 
50  N.  E.  1124,  affirmed  in  177  U.  S.  190,  20  Sup.  Ct.  576,  44  L.  ed, 
729;  Hague  v.  Wheeler,  157  Pa.  St.  324,  37  Am,  St.  Eep.  736,  27  Atl. 
714,  22  L.  R.  A.  141. 

In  the  following  cases  there  are  intimations  that  the  court  will  con- 
sider the  parties'  motive  in  ordinary  cases  of  nuisance:  Christie  v. 
Davie,  [1893]  1  Ch.  316  (motive  of  defendant  in  making  a  noiso); 
Medford  v.  Levy,  31  W.  Va.  649,  13  Am.  St.  Eep.  887,  8  S.  E.  302, 
2  L,  E.  A.  368  (quarrel  between  neighbors);  Bassett  v.  Salisbury, 
47  N.  H,  426  (plaintiff  bought  land  flooded  by  defendant's  dam  in 
order  to  compel  defendant  to  buy  other  land  from  him);  Edwards  v. 
Allouez  Mining  Co.,  38  Mich.  46,  31  Am.  Eep.  301  (similar  to  preceding 
case). 


903  INJUNCTION  AGAINST  NUISANCE.  §  529 

§  529.  The  Balance  of  Injury. — The  question  liow  far 
courts  of  equity,  in  dealing  with  cases  of  admitted  or 
established  nuisances,  should  be  influenced,  in  their 
determination  whether  to  grant  an  injunction  or  to 
turn  the  plaintiff  over  to  his  remedy  at  law,  by  the 
balance  between  the  injury  to  the  plaintiff  from  re- 
fusing, and  to  the  defendant  from  granting  the  injunc- 
tion, has  received  considerable  attention  from  the 
courts,  and  has  met  with  conflicting  answers — often 
from  courts  within  the  same  jurisdiction.  It  is  to  be 
noted  that  the  question  as  here  raised  excludes  certain 
situations  in  which  its  consideration  is,  beyond  all 
doubt,  proper  and  even  necessary.  The  first  of  these 
is  on  application  for  temporary  injunctions,  in  which, 
the  questions  in  dispute  being  undetermined,  the  courts 
must  take  account  of  the  possibilities  of  injury  in  a 
course  of  action  which  the  hearing  may  prove  to  be  the 
wrong  one.^^^  The  second,  is  in  the  determination  of 
the  wrongfulness  of  the  defendant's  act — the  fact  of 
nuisance  or  no  nuisance — in  that  large  class  of  cases 
in  which  there  is  no  invasion  of  a  clearly  defined  right 
of  the  plaintiff — such  as,  say,  the  right  to  have  water 
flow  in  its  accustomed  channel — but,  rather,  of  a  right 
which  is  determined  by  all  the  circumstances  of  the 
case,  place,  time,  degree,  and  the  like — nuisances  such 
as  noise,  vibration  and  pollution  of  air.  In  cases  of 
this  sort  a  balancing  of  injury — the  plaintiff's  comfort 
and  enjoyment  against  the  public  benefit  from  the  pros- 
ecution of  the  business  complained  of,  the  defendant's 
advantage  in  carrying  on  his  offending  business  against 
the  plaintiff's  welfare — is,  of  course,  an  essential  factor 
in  the  decision  whether  any  nuisance  exists  or  not. 
But  this  point  having  been  determined  in  the  plaintiff's 
favor,  the  question  now  to  be  discussed  is,  whether,  on 

111  See  infra,   §  535. 


§  530  EQUITABLE  REMEDIES.  904 

an  application  for  a  permanent  injunction  against  an 
admitted  or  proved  nuisance,  the  courts  of  equity 
should  carry  this  balancing  of  injury  admittedly  fur- 
ther than  the  courts  of  law  carry  it,  and  make  it  a 
test  for  the  granting  or  withholding  of  their  peculiar 
relief. 

§  530.  Balance  Between  Private  Parties. — The  balance 
of  injury  which  may  determine  the  granting  or  refusing 
of  an  injunction  arises  in  two  forms,  which,  however, 
may  appear  together  in  the  same  case.  In  the  first  of 
these  the  balance  is  between  the  injuries  to  the  plain- 
tiff, a  private  individual,  and  to  another  private  indi- 
vidual ;  in  the  second,  between  the  injuries  to  the  plain- 
tiff, a  private  individual,  and  to  the  public,  which  ben- 
efits from  the  defendant's  wrongful  enterprise.  On 
the  first  of  these  questions,  curiously  enough,  the  same 
jurisdiction  furnishes  as  strong  statements  on  both 
sides  as  may  be  found.  In  Richard's  Appeal,^  ^^  an  in- 
junction was  sought  against  the  use  of  bituminous  coal 
in  the  defendant's  iron-works,  which  materially  injured 
the  plaintiff's  dwelling-house  and  his  cotton  factory. 
In  refusing  the  injunction  the  court  said:  "An  error 
seems  somewhat  prevalent  in  portions,  at  least,  of  this 
commonwealth  in  regard  to  proceedings  in  equity  to 
restrain  the  commission  of  nuisances.  It  seems  to  be 
supposed  that,  as  at  law,  whenever  a  case  is  made  out 
of  wrongful  acts  on  the  one  side  and  consequent  injury 
on  the  other,  a  decree  to  restrain  the  act  complained 
of  must  as  certainly  follow  as  a  judgment  would  follow 
a  verdict  in  a  common-law  court.  This  is  a  mistake. 
It  is  elementary  law  that  in  equity  a  decree  is  never  of 
right,  as  a  judgment  at  law  is,  but  of  grace.  Hence, 
the  chancellor  will  consider  whether  he  would  not  do  a 

112     57  Pa.  St.  105,  98  Am.  Dec.  202. 


905  INJUNCTION  AGAINST  NUISANCE.  §  530 

greater  injury  by  enjoining  than  would  result  from  re- 
fusing, and  leaving  the  party  to  his  redress  at  the  hands 
of  a  court  and  jury.  If  in  conscience  the  former  should 
appear,  he  will  refuse  to  enjoin."  In  Evans  v.  Reading 
etc.  Fertilizing  Co.^^^  the  bill  was  to  enjoin  the  opera- 
tion of  a  fertilizer  factory,  the  stench  from  which  ren- 
dered the  plaintiff's  house  almost  uninhabitable.  Af- 
ter remarking  that  the  proper  application  of  the  ''bal- 
ance of  injury  notion"  was  to  motions  for  preliminary 
injunctions,  the  court  continued :  "But  where,  upon  final 
hearing,  the  mind  of  the  chancellor  is  satisfied  that  the 
complainant's  right  is  clear,  and  the  injury  sustained 
by  him  substantial,  so  that  his  claim  to  damages  at  law 
is  indisputable,  and  where,  moreover,  such  damages 
could  not  give  him  adequate  redress  except  by  an  end- 
less repetition  of  suits,  a  refusal  of  an  injunction  upon 
the  ground  that  plaintiff  cannot  suffer  as  great  a  loss 
from  the  continuance  of  the  nuisance  as  defendant 
would  from  its  interdiction,  would  be  as  far  from 
equity  as  can  be.  There  is,  to  my  mind,  no  more  of- 
fensive plea  than  that  by  which  one  seeks  to  justify 
an  act  injurious  to  his  neighbor  on  the  ground  of  its 
advantage  to  himself."  The  court,  in  another  juris- 
diction, replying  to  the  argument  for  a  balancing  of 
the  injury  said:  "If  the  injuries  to  the  plaintiffs  were 
of  a  trivial  character,  they  should,  perhaps,  be  consid- 
ered damnum  absque  injuria;  but  a  comparison  of  the 
value  of  the  conflicting  rights  would  be  a  novel  mode 
of  determining  their  legal  superiority."^  ^^  The  sug- 
gestion of  these  last  two  quotations  that  a  balancing 
of  injury  is  given  effect  to  once  in  the  determination 
of  the  fact  of  nuisance  and,  hence,  does  not  need  to  be 
made  a  second  time  in  determining  the  proper  remedy, 

113  160  Pa.  St.  209,  20  Atl.   702. 

114  Weaver  v.  Eureka  Lake  Co.,  15  Cal.  271. 


§  530  EQUITABLE  EEMEDIES.  906 

and  that  it  is  anomalous  to  deny  the  equitable  relief  in 
a  case  where  the  legal  wrong  and  the  inadequacy  of 
the  legal  remedy  are  established,  is  very  hard  to  meet. 
Denying  the  injunction  puts  the  hardship  on  the  party 
in  whose  favor  the  legal  right  exists  instead  of  on  the 
wrong-doer.  If  relief  intermediate  between  the  radi- 
cal remedy  of  injunction  and  the  insufficient  one  of  re- 
peated actions  at  law  for  damages  as  they  accrue  is 
desirable,  it  would  seem  that  a  legislative  provision  is 
necessary  to  supply  it.  The  weight  of  authority  is 
against  allowing  a  balancing  of  injury  as  a  means  of 
determining  the  propriety  of  issuing  an  in j unction.^ ^^ 

115  Higgins  V.  Flemington  Co.,  36  N.  J.  Eq.  (9  Stew.)  538;  Hen- 
nessy  v.  Carmony,  50  N.  J.  Eq.  (5  Dick.)  616,  25  Atl.  374;  Evans  v. 
Eeading  etc.  Fertilizing  Co.,  160  Pa,  St.  209,  28  Atl.  702;  Weaver  v. 
Eureka  Lake  Co.,  15  Cal.  271;  Corning  v.  Troy  etc.  Factory,  40  N. 
Y.  191,  39  Barb.  311,  34  Barb.  485,  6  How.  Pr.  89;  Amsterdam  etc. 
Co.  V.  Dean,  13  App.  Div.  42,  43  N.  Y.  Snpp.  29;  Banks  v.  Frazier,  23 
Ky.  Law  Kep.  1197,  64  S.  W.  9S3;  Suffolk  etc.  Co.  v.  San  Miguel  etc. 
Co.,  9  Colo.  App,  407,  48  Pac.  828;  Clowes  v.  Staffordshire  etc.  Co., 
L.  E.  8  Ch.  App.  125;  Pennington  v.  Brinsop  etc.  Co.,  L.  E.  5  Ch.  D. 
769;  Young  v.  Banker  etc.  Co.,  [1893  J  App,  Cas.  691,  702;  Hobbs 
v.  Amador  Co.,  66  Cal,  161,  4  Pac.  1147;  Chestatee  Co,  v,  Cavenders 
Co.,  118  Ga,  255,  45  S,  E.  267;  Weston  Paper  Co.  v.  Pope,  155  Ind.  394, 
57  N.  E,  719,  56  L.  E.  A,  899;  Townsend  v.  Bell,  62  Hun,  306,  17  N,  Y. 
Snpp.  210;  Brown  v.  Ontario  etc.  Co.,  31  App.  Div.  273,  80  N.  Y. 
Supp,  837;  Beckwith  v.  Howard,  6  E.  L  1.  See,  also,  14  Harv.  Law 
Eev.,  p,  458.  In  Weston  Paper  Co.  v.  Pope,  supra,  the  court,  per  Had- 
ley,  J.,  said:  "The  fact  that  the  appellant  has  expended  a  large  sum  of 
money  in  the  construction  of  its  plant  and  that  it  conducts  its  busi- 
ness in  a  careful  manner  and  without  malice  can  make  no  difference 
in  its  rights  to  the  stream  Before  locating  the  plant  the  owners  were 
bound  to  know  that  every  riparian  proprietor  is  entitled  to  have 
the  waters  of  the  stream  that  washes  his  land  come  to  it  without  ob- 
struction, diversion,  or  corruption,  subject  only  to  the  reasonable  use 
of  the  water,  by  those  similarly  entitled,  for  such  domestic  purposes 
as  are  inseparable  from  and  necessary  for  the  free  use  of  their  land; 
and  they  were  bound  also  to  know  the  character  of  their  proposed 
business,  and  to  take  notice  of  the  size,  course  and  capacity  of  the 
stream,  and  to  determine  for  themselves  and  at  their  own  peril 
whether  they  should  be  able  to  conduct  their  business  upon  a  stream 


907  INJUNCTION  AGAINST  NUISANCJE.  §  531 

§  531.  Balance  Between  the  Plaintiff  and  the  Puhlic. — 
When  the  defendant's  business  which  constitutes  the 
nuisance  complained  of  is  one  from  which  the  public 
benefits  directly  or  in  an  unusually  marked  degree,  the 
balance  of  injury  presents  itself  in  a  different  form. 
Shall  the  plaintiff  by  procuring  an  injunction  put  an 
end  to  a  business  from  which  the  public  receives  large 
benefit,  and  from  the  stopping  of  which  public  hardship 
would  ensue?     The  extreme  case  which  will  fully  test 

of  the  size  and  character  of  Brandywine  creek  without  injury  to  their 
neighbors;  and  the  magnitude  of  their  investment  and  their  freedom 
from  malice  furnish  no  reason  why  they  should  escape  the  conse- 
quences of  their  own  folly."  In  the  following  cases  there  are  state- 
ments of  the  courts  that  the  balance  of  injury  between  the  plaintiff 
and  defendant  is  to  be  considered  in  determining  whether  to  issua 
an  injunction.  In  almost  every  case,  however,  the  statement  has 
been  repudiated  by  the  court  making  it,  or  is  a  dicUim,  or  is  a  part 
only  of  the  ground  of  decision:  Davis  v.  Sawyer,  133  Mass.  289,  43 
Am.  Eep.  519  (dictum);  Wood  v.  Sutcliffe,  2  Sim.,  N.  S.,  163  (part 
only  of  ground  of  decision,  and  clearly  not  the  doctrine  of  the  Eng- 
lish courts;  see  cases  cited,  supra);  Eichards*  Appeal,  57  Pa.  St.  (7 
P.  F.  Smith)  105,  93  Am.  Dec.  202  (overruled  in  Evans  v.  Eeadin^ 
etc.  Fertilizing  Co.,  supra) ;  Herr  v.  Central  etc.  Asylum,  22  Ky.  Law 
Eep.  1722,  61  S.  W.  283  (acquiescence  of  defendant  also  shown); 
Hawley  v.  Beardsley,  47  Conn.  571  (but  injury  was  such  that  the 
legal  remedy  was  adequate) ;  Eobinson  v.  Clapp,  67  Conn.  538,  52  Am. 
Bt.  Eep.  298,  35  Atl.  504  (it  was  doubtful  if  thing  threatened — cut- 
ting away  projecting  trunk  of  a  boundary  tree — was  a  legal  wrong  at 
all) ;  Tuttle  v.  Church,  53  Fed.  422  (but  no  nuisance  was  established  in 
fact);  Fox  v.  Holcomb,  32  Mich.  494;  Turner  v.  Hart,  71  Mich.  128, 
15  Am.  St.  Eep.  243,  38  N.  W.  890;  City  of  Big  Eapids  v.  Comstock, 
65  Mich.  78,  31  N.  W.  811  (dictum);  Potter  v.  Saginaw  etc.  Ey.  Co., 
83  Mich.  285,  47  N.  W.  217,  10  L.  E.  A.  176  (dictum);  cf.  Stock  v. 
Jefferson  Tp.,  114  Mich.  357,  72  N.  W.  132,  38  L.  E.  A.  355;  Dana 
V.  Craddock,  66  N.  H.  593,  32  Atl.  757  (dictum);  Goodall  v.  Crofton, 
33  Ohio  St.  271,  31  Am.  Eep.  535  (dictum);  Wahl  v.  Cemetery  Assn., 
197  Pa.  St.  197,  46  Atl.  913  (dictum);  Becker  v.  Lebanon  etc.  Co., 
188  Pa.  St.  484,  41  Atl.  612  (but  laches  also  present  in  the  case;  cf. 
Pennsylvania  cases  cited,  supra);  Morris  etc.  Co.  v.  Prudden,  20  N. 
J.  Eq.  530  (cf.  New  Jersey  cases  cited,  supra);  Madison  v.  Ducktown 
S.,  C.  &  I.  Co.  (Tenn.),  83  S.  W.  658  (but  decision  is  influenced  by 
B  statute). 


{  531  EQUITABLE  EEMEDIES.  908 

the  ruk'  Is  that  in  which  the  defendant  is  a  quasi-'puhlic 
corpordUon  engaged  in  supplying  a  city  with  water  or 
other  necessity.  In  such  a  case  the  nuisance  com- 
plaiu'-jd  of  was  the  smoke  from  the  defendant's  water- 
works, which,  in  a  material  degree,  deprived  the  plain- 
tiffs of  the  enjoyment  of  their  property.  In  denying 
an  injunction  the  court  said:  "If  the  defendant  were 
enjoined  even  for  a  time,  the  result  might  be  disastrous; 
for  the  water  supplied  by  it  is  the  only  efficient  means 
of  extinguishing  conflagrations  at  the  command  of  the 
city  or  its  citizens.  Besides  this,  a  daily  and  hourly 
supply  of  water  used  for  many  purposes  would  be  cut 
off.  We  think  it  may  be  safely  assumed  that  the  rule 
in  equity  is,  that  where  the  damages  can  be  admeasured 
and  compensated,  equity  will  not  interfere  where  the 
public  benefit  greatly  outweighs  private  and  individual 
inconvenience."^ ^^  On  the  other  side,  it  has  been  said 
by  an  able  chancellor  on  substantially  similar  facts :  "If 
it  should  turn  out  that  the  company  had  no  right  so 
to  manufacture  gas  as  to  damage  the  plaintiff's  market 
garden,  I  have  come  to  the  conclusion,  that  I  cannot 
enter  into  any  question  of  how  far    it  might    be  cou- 

116  Per  Seevers,  J.,  in  Daniels  v.  Keokuk  "Water-works,  6l  Iowa, 
549,  16  N.  W.  705.  To  the  same  effect  are  statements  in  the  follow- 
ing cases:  Miller  v.  City  of  Webster  City,  94  Iowa,  162,  62  N.  W. 
64S;  Rouse  v.  Martin,  75  Ala.  510,  51  Am.  Kep.  463;  Clifton  Iron  Co. 
V.  Dye,  87  Ala.  468,  6  South.  192  (acquiescence  on  plaintiff's  part 
also  found);  Stewart  Wire  Co.  v.  Lehigh  Coal  etc.  Co.,  203  Pa.  St. 
474,  53  Atl.  352  (plaintiff  guilty  of  acquiescence,  however) ;  Eiede- 
man  v.  Mt.  Morris  etc.  Co.,  56  App.  Div.  23,  67  N.  Y.  Supp.  391  (but 
there  was  doubt  whether  plaintiff  was  substantially  damaged  by 
the  thing  complained  of) ;  Atchison  etc.  Co.  v.  Meyer,  62  Kan.  696, 
64  Pae.  597  (but  the  legal  remedy  was  adequate);  Grey  v.  City  of 
Paterson  (N.  J.),  45  Atl.  995,  48  L.  E.  A.  717  (but  plaintiffs  wero 
guilty  of  acquiescence) ;  Fisk  v.  City  of  Hartford,  70  Conn.  720,  66 
Am.  St.  Eep.  147,  40  Atl.  906  (but  the  legal  remedy  was  adequate, 
and  plaintiff  had  been  guilty  of  laches) ;  Wees  v.  Coal  etc.  Co.,  54  W. 
Va.  421,  46  S.  E.  166;   Lilly  white  v.  Trimmer,  36  L.  J.  Ch.  525. 


909  INJUNCTION   AGAINST  NUISANCE.  §  531 

venient  for  the  public  that  the  j;as  manufacture  should 
go  on.  That  might  be  a  good  ground  for  the  legisla- 
ture to  declare  that  the  company  might  make  gas  if 
they  indemnified  the  plaintiff;  but,  unless  the  company 
had  such  a  right  I  think  the  present  is  not  a  case  in 
which  this  court  can  go  into  the  question  of  con- 
venience or  inconvenience,  and  say  where  a  party  is 
substantially  damaged,  that  he  can  only  be  compen- 
sated by  bringing  an  action  toties  quotics.  That  would 
be  a  disgraceful  state  of  the  law;  and  I  quite  agree 
with  the  vice-chancellor,  in  holding  that  in  such  a  case 
this  court  must  issue  an  injunction,  whatever  may  be  the 
consequences  with  regard  to  the  lighting  of  the  parishes 
and  district  which  this  company  supplies  with  gas."^^' 

117  Lord  Cranworth  in  Broadbent  v.  Imperial  Gas.  Co.,  7  De  Gex, 
M.  &  G,  436,  462,  affirmed  in  7  H.  L.  Cas.  600.  To  the  same  effect  are 
Attorney-General  v.  Council  etc.  Birmingham,  4  Kay  &  J.  528,  538; 
Attorney-General  v.  Colney  etc.  Asylum,  L.  E.  4  Ch.  App.  146;  At- 
torney-General V.  Terry,  L.  E.  9  Ch.  App.  423;  Sammona  v.  City  of 
Gloversville,  34  Mise.  Eep.  459,  70  N.  Y.  Supp.  284;  Stock  v.  Jeffer- 
son Township,  114  Mich.  357,  72  N.  W.  132,  38  L.  E.  A.  355;  Ex  parte 
Martin,  13  Ark.  198,  58  Am.  Dec.  321;  Village  of  Dwight  v.  Hayes, 
150  111.  273,  41  Am.  St.  Eep.  367,  37  N.  E.  218,  affirming  49  III.  App. 
530;  Hinchman  v.  Paterson  etc.  Co.,  17  N.  J.  Eq.  (2  C.  E.  Green)  75, 
86  Am.  Dec.  252  (dictum);  Aquackanock  etc.  Co.  v.  Watson,  29  N.  .T. 
Eq.  366;  Harper  etc.  Co.  v.  Mountain  Water  Co.,  65  N.  J.  Eq.  479,  .56 
Atl.  297;  Smith  v.  City  of  Eochester,  38  Hun,  612,  affirmed  in  104 
N.  Y.  674;  Duesler  v.  City  of  Johnstown,  24  App.  Div.  608,  48  N.  Y. 
Supp.  683.  In  Attorney-General  v.  Council  etc.  Birmingham,  supra, 
Wood,  V. C,  said:  "It  has  been  urged  upon  me  more  than  once  during 
the  argument  by  the  counsel  for  the  defendants,  that  there  are  250,- 
000  inhabitants  in  the  town  of  Birmingham,  and  that  this  circum- 
stance must  be  taken  into  consideration  in  determining  the  question 

of  the  plaintiff's  right  to  an  injunction Now,  with  regard  to 

the  question  of  the  plaintiff's  right  to  an  injunction,  it  appears  to  me, 
that,  so  far  as  this  court  is  concerned,  it  is  a  matter  of  almost  abso- 
lute indifference  whether  the  decision  will  affect  a  population  of 
250,000  or  a  single  individual  carrying  on  a  manufactory  for  his  own 
benefit.  The  rights  of  the  plaintiff  must  be  measured  precisely  aa 
they  have  been  left  by  the  legislature.     I  am  not  sitting  here  aa  a 


8  r.32  EQUITABLE  KEMEDIES.  910 

On  its  merits,  as  well  as  on  authority,  the  superiority  of 
this  latter  view  seems  hardly  to  admit  of  doubt.  The  re- 
fusal of  the  injunction,  in  the  first  place,  leaves  the  plain- 
tiff to  suffer  an  admitted  legal  wrong  and  to  obtain  his 
only  redress  by  an  admittedly  inadequate  remedy.  And, 
in  the  second  place,  so  far  as  the  interests  of  the  public 
are  considered,  that  case  is  not  to  be  distinguished  in 
principle  from  the  taking  of  property  for  public  pur- 
poses which  the  federal  constitution  forbids;  true,  the 
damage  from  a  nuisance  may  not  always  be  a  "taking" 
as  defined  by  the  authorities,  but  it  would  seem  within 
the  same  reasoning ;^i^  and,  if  the  public  need  requires 
it,  the  plaintiff's  property  can  be  taken  or  legislative 
provision  made  for  the  payment  of  permanent  damages 
to  him.  The  objection  that  temporary  hardship  to  the 
public  may  result  from  granting  the  injunction  at  once 
can  be  obviated  by  allowing  time  for  the  necessary  re- 
adjustment, before  putting  it  into  effect.^^' 

§  532.  Nuisance  Easily  Avoided  by  the  Plaintiff. — Closely 
related  to  the  question  discussed  in  the  preceding  para- 
graphs is  another  which  is  raised  when  there  is  offered 
as  a  defense  to  a  bill  for  an  injunction  against  a  nui- 
sance, the  fact  that  the  plaintiff  could  prevent  the 
nuisance  by  a  comparatively  small  outlay  of  labor  or 
expense.  In  most  of  the  cases  in  which  the  question 
has  arisen,  the  defense  has  been  rejected,  sometimes 
with  vigor.     "Neither  does    it  make    any    difference," 

committee  for  public  safety,  armed  with  arbitrary  power  to  prevent 
what,  it  is  said,  will  be  a  great  injury,  not  to  Birmingham  only,  but 
to  the  whole  of  England,— that  is  not  my  function." 

118  See  Pennsylvania  E.  R,  Co.  v.  Angel,  41  N.  J.  Eq.  (14  Stew.) 
316,  56  Am.  Rep.  1,  7  Atl.  432;  Baltimore  etc.  Co.  v.  Fifth  Baptist 
Church,  108  U.  S.  317,  2  Sup.  Ct.  719. 

119  See  the  form  of  decree  in  Harding  v.  Stamford  Water  Co.,  41 
Conn.  87,  and  the  remarks  of  Selwyn,  L.  J.,  in  Attorney-General  v. 
Colney  etc.  Asylum,  4  Ch.  App.  146,  165,  166. 


yil  INJUNCTION  AGAINST  NUISANCE.  (  532 

said  the  court  in  Paddock  v.  Somes/ ^o  "or  in  any  meas- 
ure operate  as  an  excuse  that  the  nuisance  cannot  be. 
obviated  without  great  expense,  or  that  the  plaintiff 
himself  could  obviate  the  injury  at  a  trifling  expense. 
It  is  the  duty  of  every  person  or  public  body  to  prevent 
a  nuisance,  and  the  fact  that  the  person  injured  could, 
but  does  not,  prevent  damages  to  his  property  therefrom 
is  no  defense  either  to  an  action  at  law  or  in  equity. 
A  party  is  not  bound  to  expend  a  dollar,  or  to  do  any 
act  to  secure  for  himself  the  exercise  or  enjoyment  of 
a  legal  right  of  which  he  is  deprived  by  reason  of  the 
wrongful  acts  of  another."  In  a  comparatively  early 
case  the  same  question  was  raised  on  the  following 
facts:  The  plaintiff's  spring  was  overflowed  and  sedi- 
ment deposited  in  it  as  a  result  of  the  working  of  the 
defendant's  mill.  It  appeared  that  the  spring  could 
be  protected  by  digging  a  ditch  two  hundred  and  fifty 
yards  long.  On  these  facts  it  was  clear  that  a  small 
expenditure  of  labor  would  give  the  plaintiff  protection 
equal  to  that  of  an  injunction  and  at  the  same 
time  leave  the  defendant  undisturbed  in  the  exercise 
of  his  lawful  business.  Hence  the  injunction  was  re- 
fused. ^^^  The  unqualified  refusal  of  the  injunction 
may  perhaps  be  open  to  criticism  in  that  it  leaves  the 
plaintiff  to  incur  the  risk  of  recovering  from  the  de- 
fendant compensation  for  whatever  labor  or  expense 
he  should  be  put  to  in  doing  away  with  the  nuisance. 
But  it  seems  that  a  very  simple  and  not  uncommon 
exercise  of  the  court's  power  to  mold  decrees  accord- 
ing to  the  needs  of  the  case  would,  in  all  such  cases, 
meet  this  criticism  and  yet  save  to  the  defendant  the 
right  to  continue  his  business.     A  decree  so  framed  as 

120  102  Mo.  226,  238,  14  S.  W.  746,  10  L.  E.  A.  254,  per  Sherwood, 
J.,  quoting  Wood  on  Nuisances,  2d  ed.,  506. 

121  Eosser  v.  Eandolph,  7  Port.  (Ala.)  238,  31  Am.  Dec,  712. 


5  533  EQUITABLE  EEMEDIES.  91* 

to  grant  the  injunction  unless  tlie  defendant  would 
either  himself  do  the  acts  necessary  to  avoid  the  nui- 
sance or  give  sufficient  undertaking  to  protect  the 
plaintiff  in  doing  them,  and  requiring  the  plaintiff 
either  to  allow  the  defendant  to  do  the  acts  or  to  ac- 
cept the  undertaking,  as  the  case  might  be,  on  pain 
of  losing  all  equitable  relief,  would  do  full  justice  to 
both  parties  without  hardship  to  either.^-^  It  must  be 
said,  however,  that  this  form  of  decree  has  not  been 
adopted  by  any  court  in  this  particular  class  of  cases, 
although  the  situation  would  seem  an  eminently  appro- 
priate one  for  it.  The  clear  weight  of  authority  is  with 
the  first  case  cited  above,  granting  the  injunction  un- 
qualifiedly.^^* 

§  533.  Relief  Given;  Mandatory  Injunctions. — The  relief 
sought  in  equity  against  nuisance  is,  of  course,  pre- 
ventive, either  to  prohibit  the  creation  of  a  nuisance  or 
to  prevent  an  existing  one  from  continuing  in  the  fu- 

122  For  illustration  of  tliis  form  of  decree,  see  Henderson  v.  New 
York  Cent.  etc.  Co.,  78  N.  Y.  423;  Pappenheini  v.  Metropolitan  etc. 
Co.,  128  N.  Y.  436,  26  Am.  St.  Eep.  486,  28  N.  E.  518,  13  L.  E.  A.  401. 

123  Paddock  v.  Somes,  102  Mo.  226,  14  S.  W.  746,  10  L.  E.  A.  254; 
Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147,  34  N.  E.  85,  20  L.  E.  A. 
844;  Masonic  etc.  Assn.  v.  Banks,  94  Va.  695,  27  S.  E.  490;  EichmonJ 
Mfg.  Co.  V.  Atlantic  etc.  Co.,  10  E.  I.  106,  14  Am.  Eep.  658;  Middle- 
stadt  V.  Waupaca  etc.  Co.,  93  Wis.  1,  66  N.  W.  713;  Suffolk  etc.  Co. 
V.  San  Miguel  etc.  Co.,  9  Colo.  App.  407,  48  Pac.  828;  Clowes  v.  Staf- 
fordshire etc.  Co.,  8  Ch.  App.  125;  Town  of  Burlington  v.  Schwarz- 
man,  52  Conn.  181,  52  Am.  Eep.  571;  Martin  v.  Marks,  154  Ind. 
549  57  N.  E.  249.  Contra,  Eosser  v.  Eandolph,  7  Port.  (Ala.)  238, 
31  Am.  Dec.  712;  English  v.  Progress  etc.  Co.,  95  Ala.  259,  10  South. 
134-  Kingsbury  v.  Flowers,  65  Ala.  479,  39  Am.  Eep.  14;  Porter 
V.  Armstrong,  132  N.  C.  66,  43  S.  E.  542.  The  suggestion  of  the 
text  would,  of  course,  apply  only  where  the  nuisance  arose  out  of 
the  application  of  the  doctrine  of  correlative  rights,  not  where  the 
defendant's  acts  which  cause  the  nuisance  are  wrongful  per  se;  nor 
would  it  apply  when  the  acts  by  which  the  nuisance  was  obviated 
would  cause  substantial  or  permanent  damage  to  the  plaintiff. 


913  INJUNCTION  AGAINST  NUISANCE.  {  533 

ture.  Ordinarily,  this  end  is  achieved  by  a  mere  pro- 
hibitive injunction.  When,  as  is  not  uncommonly  the 
case,  however,  the  nuisance  is  one  which  exists,  and  will 
continue  to  exist,  because  of  acts  already  done — as,  for 
example,  the  building  of  a  dam — without  further  acting 
on  the  defendant's  part,  mere  prohibition  will  not  serve 
to  accomplish  the  desired  result;  mandatory  relief  is 
necessary  to  end  the  wrong.  In  such  a  case  it  was  said 
by  the  court:  "It  is  not  to  correct  a  wrong  of  the  past, 
in  the  sense  of  redress  for  the  injury  already  sustained, 
but  to  prevent  further  injury.  The  injury  consists  in 
the  overflow  of  the  lands  of  the  plaintiff.  It  was  not 
alone  the  building  of  the  dam  that  caused  the  injury, 
but  its  maintenance,  or  continuance,  which  is  a  part 
of  the  act  complained  of;  and  its  maintenance  can  only 
be  estopped  so  as  to  prevent  its  injury  by  its  removal. 
The  removal  of  the  dam,  wrongfully  constructed,  is 
necessary  for  and  incidentally  involved  in  the  pre- 
ventive redress  which  the  law  authorizes."^ ^^  On  this 
ground  the  use  of  mandatory  injunctions  is  resorted  to 
whenever  necessary  to  give  the  full  relief  to  which  the 
plaintiff  is  entitled.  In  such  cases  it  is  generally  de- 
structive acts  requiring  no  supervision  that  are  required, 
as  the  removal  of  an  object  that  is,  or  causes,  a  nui- 
sance.^^^     Occasionally,     however,    it    may     be    con- 

124  Troe  V.  Larson,  84  Iowa,  649,  35  Am.  St.  Eep.  336,  51  N.  W. 
179. 

125  Troe  V.  Larson,  supra;  Holmes  v.  Calhoun  Co.,  97  Iowa,  360, 
66  N.  W.  145;  Middlesex  Co,  v.  City  of  Lowell,  149  Mass.  509,  21 
N.  E.  872;  Crocker  v.  Manhattan  etc.  Co.,  61  App.  Div.  226,  70  N. 
Y.  Supp.  492;  Eothery  v.  New  York  Rubber  Co.,  90  N.  Y.  30;  Ham- 
mond V.  Fuller,  1  Paige,  197;  City  of  Mt.  Clemens  v.  Mt.  Clemens 
etc.  Co.,  127  Mich.  115,  86  N.  "W.  537,  8  Det.  Leg,  N.  282;  Atchison 
etc.  Co.  V.  Lang,  46  Kan.  701,  26  Am.  St.  Rep.  165,  27  Pac.  182; 
Shroyer  v.  Campbell,  31  Ind.  App.  83,  67  N.  E.  193;  Martin  v.  Marks, 
154  Ind.  549,  57  N.  E.  249;  Lake  Erie  etc.  Co.  v.  Essington,  27  Ind. 
App.  291,  60  N.  E.  457;   City  of  Eau  Claire  v.  Matzke,  86  Wis.  291, 

Equitable  Remedies,  Vol.  1—58 


§  534  EQUITABLE  EEMEDIES.  914 

structive  or  continuing  acts  that  are  directed.^ ^'  Sub- 
ject to  tlie  reluctance  of  equity  courts  to  order  tlie 
doing  of  acts  that  will  require  supervision,^-'^  it  is  no 
distinction  between  prohibitory  and  mandatory  injunc- 
tions or  between  different  kinds  of  mandatory  relief 
that  guides  the  court  in  the  form  of  injunction  issued, 
but  rather  the  nature  of  the  relief  demanded  in  order 
to  give  the  plaintiff  the  protection  to  which  he  is  en- 
titled. 

§  534.  Form  of  Injunction.— The  forms  of  injunction 
used  against  nuisances  illustrate  to  an  unusual  degree 
both  the  flexibility  of  equitable  procedure  and  also  the 
relative  nature  of  nuisances.  In  a  great  many  cases  a 
thing  is  a  nuisance  not  because  it  is  in  itself  deemed 
wrongful  in  law,  but  because  the  manner  in  which  it  is 
done,  or  the  extent  to  which  it  is  carried,  causes  it  to 
cross  the  line  beyond  which  the  law  will  not  allow  one 

56  N.  W.  874;  City  of  Wauwatosa  v.  Dreutzer,  116  Wis.  117,  92  N. 
W.  551;  McHugh  v.  Louisville  Bridge  Co.,  23  Ky.  Law  Eep.  1546, 
65  S.  W.  456;  Great  Northern  etc.  Co.  v,  Clarence  Ey.,  1  Coll.  C.  C. 
507;  Laybourn  v.  Gridley,  [1892]  2  Cli.  53;  Attorney-General  v.  Heat- 
ley,  [1897]  1  Ch.  560;  Goodrich  v.  Georgia  etc.  Co.,  115  Ga.  340,  41 
S.  E.  659;  Broome  v.  New  York  etc.  Co.,  42  N.  J.  Eq.  141,  7  Atl. 
851;  Clifton  v.  Town  of  Weston,  54  W.  Va.  250,  46  S.  E.  360;  Baum- 
gartner  v.  Bradt,  207  111.  345,  69  N.  E.  912;  Norwalk  etc.  Co.  v.  Ver- 
nam,  75  Conn.  662,  96  Am.  St.  Eep.  246,  55  Atl.  168;  Ackerman  v. 
True,  175  N.  Y.  353,  67  N.  E.  629;  Village  of  Oxford  v.  Willoughby 
(N.  Y.),  73  N.  E.  677;  Allen  v.  Stowell,  145  Cal.  666,  104  Am.  St. 
Rep.  80,  79  Pac.  371. 

126  City  of  Moundsville  v.  Ohio  etc.  Co.,  37  W.  Va.  92,  16  S.  E. 
514,  20  L.  E.  A.  161;  City  of  Kankakee  v.  Trustees  etc.  Hospital,  66 
111.  App.  112;  Manchester  etc.  Co.  v.  Worksop  Board  of  Health,  23 
Beav.  198;  Kaspar  v.  Dawson,  71  Conn.  405,  42  Atl.  78;  Corning  v. 
Troy  etc.  Factory,  40  N.  Y.  191,  39  Barb.  311,  34  Barb.  485,  61  How. 
Pr.  89;  Bucholz  v.  New  York  etc.  Co.,  148  N.  Y.  640,  43  N.  E.  76, 
reversing  66  Hun,  377,  21  N.  Y.  Supp.  503. 

127  See  Bradfiekl  v.  Dewell,  48  Mich.  9,  11  N.  W.  760;  Wende  v. 
Socialer  Turn  Verein,  66  111.  App.  591;  cf.  Kaspar  v.  Dawson,  supra. 


915  INJUNCTION  AGAINST  NUISANCE.  {  534 

to  go,  even  in  the  strict  conduct  of  his  own  business. 
This  situation  is  recognized  by  equity  courts  in  grant- 
ing injunctions,  with  the  result  that  they  are  gener- 
ally so  framed  as  to  prohibit  only  that  part  of  the  thing 
complained  of  which  is  injurious,  saving  to  the  de- 
fendant the  right  to  continue  his  business  if  it  can  be 
conducted  in  a  harmless  way.  "Injunctions  against 
carrying  on  a  legitimate  and  lawful  business  should  go 
no  further  than  is  absolutely  necessary  to  protect  the 
lawful  rights  of  the  parties  seeking  such  injunction. 
When  a  person  is  engaged  in  carrying  on  such  business, 
he  should  not  be  absolutely  prohibited  from  doing  so, 
unless  it  appears  that  the  carrying  on  of  such  business 
will  necessarily  produce  the  injury  complained  of.  If 
it  can  be  conducted  in  such  a  way  as  not  to  constitute 
a  nuisance,  then  it  should  be  permitted  to  be  contin- 
ued in  that  manner."^^^  This  result  is  sometimes 
reached  by  inserting  in  the  prohibition  such  qualify- 
ing words  as  "to  the  injury  or  damage  of  the  plain- 
tiff,"^^^  or  others  of  similar  nature  ;^^'^  sometimes  by 

128  Chamberlain  v.  Douglas,  24  App.  Div,  582,  48  N.  Y,  Supp.  710. 

129  Lingwood  v.  Stowmarket  Co.,  L.  E,  1  Eq.  77,  336;  Ulbricht  v. 
Eufaula  Water  Co.,  86  Ala.  587,  11  Am.  St.  Eep.  72,  6  South.  78,  4 
L.  R.  A.  572;  Sullivan  v.  Eoyer,  72  Cal.  248,  1  Am.  St.  Eep.  51,  13 
Pac.  655;  Snow  v.  Williams,  16  Hun,  468.  See,  also,  McNenomy  v. 
Baud,  87  Cal.  134,  26  Pac.  795;  cf.  Earl  of  Eipon  v.  Hobart,  Cooper 
temp.  Brougham,  333,  343;  Miller  v.  Edison  etc.  Co.  of  N.  Y.,  33  Misc. 
Eep.  664,  68  N,  Y.  Supp.  900;  Schaub  v.  Perkinson  Bros.  Const.  Co., 
108  Mo.  App.  122,  82  S.  W.  1094. 

130  Winchell  v.  City  of  Waukesha,  110  Wis.  101,  84  Am.  St.  Eep. 
902,  85  N.  W.  668  (injunction  against  discharging  sewage  into  a  river, 
"unless  the  same  shall  have  first  been  so  deodorized  and  purified 
as  not  to  contain  foul,  offensive,  or  noxious  matter  capable  of  in- 
juring the  plaintiff  or  her  property  or  causing  nuisance  thereto"); 
York  v.  Davidson,  39  Or.  81,  65  Pac.  819  (allowing  defendants  to  Im- 
pound mining  debris  only  "when  they  shall  have  adopted  and  con- 
structed an  efficient  and  durable  system  or  device  for  the  purpose, 
such  as  will  meet  with  the  advice  and  approval  of  persons  skilled 
in  such  matters  and  the  court");  cf.  City  of  Grand  Eapids  v.  Weiden. 


{  535  EQUITABLE  REMEDIES.  916 

giving  the  defendant  leave  to  apply  for  a  modification 
of  the  injunction  upon  giving  satisfactory  proof  that 
he  can  and  will  conduct  his  business  so  as  not  to 
amount  to  a  nuisance.^  ^^  Or  the  court  may  make  a 
tentative  specific  order,  subject  to  be  modified  if  ex- 
perience shows  it  does  not  satisfactorily  accomplish  its 
purpose.^ ^^  In  accordance  with  the  same  principle  in- 
junctions will  not  be  issued,  it  is  said,  against  a  busi- 
ness which  is  a  nuisance,  when  the  nuisance  can  be  rem- 
edied by  the  use  of  scientific  appliances;  instead  the 
court  will  direct  the  introduction  of  such  appliances,^^^ 
and  whenever  necessaiy  to  prevent  hardship  a  reason- 
able amount  of  time,  in  which  the  defendant  may  con- 
form to  the  injunction,  will  be  allowed.^^* 

§  535.  Temporary  Injunctions. — The  granting  of  a  tem- 
porary injunction  in  cases  of  alleged  nuisances  does  not 
proceed  on  different  principles  from  those  common  to 
this  particular  exercise  of  equity  jurisdiction  in  other 
cases.  Its  function  is  to  preseiTe  property  until  dis- 
puted questions  concerning  it  are  settled.     A  plaintiff 

97  Mich.  82,  56  N.  W.  233,  in  which  the  court  granted  an  absolute 
injunction,  saying:  "A  change  of  method  would  probably  involve 
large  expense  in  plant,  and  while  it  might  reduce  the  evil,  would  not 
entirely  remove  the  cause  of  complaint.  An  order  directing  such 
change  would  but  invite  outlay,  and  leave  defendant  subject  to  other 
proceedings,  probably  in  the  near  future,  to  the  same  end." 

131  Chamberlain  v.  Douglas,  24  App.  Div.  582,  48  N.  Y.  Supp.  710. 

132  Babcock  v.  New  Jersey  Stock  Yard  Co.,  20  N.  J.  Eq.  296  (in- 
junction against  keeping  hogs  in  a  stockyard  more  than  three  hours 
a  day;  this  time  to  be  further  shortened  if  plaintiff  was  not  ade- 
quately protected  by  the  first  order);  Northwood  v.  Barber  etc.  Co., 
126  Mich.  284,  8  Det.  Leg.  N.  1,  85  N.  W.  724,  54  L.  K.  A.  54. 

133  Green  v.  Lake,  54  Miss.  540,  28  Am.  Rep.  378;  English  v.  Prog- 
ress etc.  Co.,  95  Ala.  259,  10  South.  134. 

134  Winchell  v.  City  of  Waukesha,  110  Wis.  101,  84  Am.  St.  Rep. 
902,  85  N.  W.  668;  Saramons  v.  City  of  Gloversville,  34  Misc.  Rep. 
459,  70  N.  Y.  Supp.  284;  Bailey  v.  City  of  New  York,  38  Misc.  Rep.  641, 
78  N,  Y.  Supp.  210. 


017  INJUNCTION  AGAINST  NUISANCE.  §  535 

who  moves  for  such  protection  must  show  a  j^^'inia  facie 
case  of  right  in  himself  ;^^^  otherwise  he  makes  no  title 
in  himself  to  relief  of  any  kind.  And,  further,  since 
the  time  for  which  the  injunction  is  sought  is  limited 
to  the  period  necessary  for  deciding  the  disputed  ques- 
tions— that  is,  till  the  judgment  at  law  or  the  decree 
in  equity,  as  the  case  may  be, — it  is  clear  he  must  show 
danger  of  injury  occurring  within  that  interval  such 
that  the  damages  recoverable  at  law  would  not  be  an 
adequate  remedy;  which  means,  generally,  that  he 
must  show  danger  of  irreparable  injury.^^^  It  is  prob- 
ably because  of  this  that  one  may  lose  his  right  to  a 
temporary  injunction  by  delay  in  a  shorter  time  than 
will  bar  him  from  procuring  a  permanent  injunction  ;^^^ 
by  his  delay  he  shows  that  he  himself  did  not  consider 
his  damage  so  serious  as  to  require  emergency  protec- 
tion. For  the  same  reason,  the  injunction  is  denied 
if  the  defendant  denies  all  intention  to  do  the  acts 
which  the  plaintiff  alleges  will  constitute  the  nuisance 

135  Hilton  V.  Earl  of  Granville,  1  Craig  &  P.  283,  292;  Catlin  v. 
Valentine,  9  Paige,  575,  38  Am.  Dec.  567;  Peck  v.  Elder,  3  Sandf. 
126. 

136  Earl  of  Eipon  v.  Hobart,  3  Mylne  &  K.  169,  Cooper  temp. 
Brougham,  333,  343;  Eeyburn  v.  Sawyer,  128  N.  C.  8,  37  S.  E.  954; 
Chalk  V.  Wyott,  3  Mer.  688;  Mohawk  Bridge  Co.  t.  Utica  etc.  R. 
R.,  6  Paige,  554;  Manhattan  etc.  Co.  v.  Barker,  7  Rob.  (N.  Y.)  523; 
WOson  V.  Eagleson  (Idaho),  71  Pae.  613;  Eden  v.  Firth,  1  H.  &  M. 
573;  Dana  v.  Valentine,  5  Met.  8.  Although  no  case  has  been  found 
repudiating  or  stating  any  different  principle  than  this,  there  is,  per- 
haps, a  tendency  not  to  inquire  strictly  whether  the  injury  likely 
to  happen  before  the  trial  or  hearing  will  be  irreparable  or  not.  See 
the  following  cases:  Attorney-General  v.  Steward,  20  N.  J.  Eq.  415; 
Wilsey  v.  Callanan,  66  Hun,  629,  21  N.  Y.  Supp.  165;  Dimon  v. 
Shewan,  34  Misc.  Eep.  72,  69  N.  Y.  Supp.  402;  City  of  Wilmington 
V.  Addicks  (Del.  Ch.),  47  Atl.  366. 

137  Attorney-General  v.  Sheffield  etc.  Co.,  3  De  Gex,  M.  &  G.  304; 
Hilton  V.  Earl  of  Granville,  1  Craig  &  P.  283,  292,  293;  Turner  v.  Mir- 
field,  34  Beav.  390;  Carlisle  v.  Cooper,  21  N.  J.  Eq.  576,  591. 


§  535  EQUITABLE  EEMEDIES.  913 

complained  of/^^  though  it  does  not  apply  if  he  simply 
denies  that  they  will  amount  to  a  nuisance,  that  being 
simply  his  opinion.^ ^^  It  has  already  been  suggested 
that  since  temporary  injunctions  must  be  granted  while 
the  rights  of  the  parties  are  yet  undetermined,  and 
hence,  whichever  course  the  court  may  pursue,  a  wrong 
may  result, — from  granting  an  injunction  against  a 
defendant  whose  defense  may  prove  good,  or  from  re- 
fusing it  to  a  plaintiff  who  may  prove  to  be  entitled  to 
it, — therefore  the  courts  should  take  into  account,  on 
applications  for  such  injunctions,  the  balance  of  in- 
jury likely  to  result  from  the  one  or  the  other  of  the 
two  courses  open,  and  act  accordingly.  In  the  lan- 
guage of  a  case  from  which  quotation  has  been  made 
before:  "So  far  as  the  'balance  of  injury'  notion  refers 
to  the  parties  to  the  litigation  ....  its  legitimate  ap- 
plication is  to  motions  for  preliminary  injunctions,  not 
to  final  decrees.  Where  the  question  before  the  court 
is  as  to  the  propriety  of  stopping  a  business  by  prelim- 
inary injunction  upon  an  ex  parte  showing,  which  may 
or  may  not  be  substantiated  by  further  examination  of 
the  case  in  due  course,  it  is  very  well  for  the  chancellor 
to  take  into  account  the  magnitude  of  the  defendant's 
investment,  and  compare  it  with  the  character  of  the 
plaintiff's  alleged  injury;  and  if  the  latter  appears  tri- 
fling beside  that  which  would  result  from  the  impair- 
ment of  the  former,  he  may  well  refuse  to  exercise  his 
power  until  more  fully  advised,"^^"  and  although,  as 
has  been  seen,  all  the  courts  do  not  agree   in    limiting 

138  Levy  V.  Rosenstein,  66  N.  T.  Supp.  101;  affirmed  in  56  A  pp. 
Div.  618,  67  N.  Y.  Supp.  630;  Manhattan  etc.  Co,  v.  Barker  (N.  Y.), 
7  Eob.  523.  But  see  Coker  v.  Birge,  9  Ga.  425,  54  Am.  Dec.  347;  f. 
c,  10  Ga.  326. 

130  Attorney-General  v.  Cohoes,  6  Paige,  133,  29  Am.  Dec.  755; 
Attorney-General  v.  Steward,  21  N.  J.  340. 

140  Evans  v.  Eeading  etc.  Co.,  160  Pa.  St.  209,  28  Atl.  702, 


919  INJUNCTION  AGAINST  NUISANCE.  §  535 

the  application  of  the  doctrine  as  narrowly  as  this,  yet 
they  are  all  agreed  that  its  application  here  is  a  proper 
one.^^^  It  is  perhaps  nothing  more  than  the  effect  of 
this  rule  that  occasions  the  frequent  expressions  of  cau- 
tion and  reluctance  in  granting  mandatory  temporary 
injunctions.^^^  To  order  the  removal  or  destruction 
of  an  object  which  is  alleged  to  be  or  to  cause  a  nui- 
sance is  to  compel  the  defendant  generally  to  lose  its 
value,  and  whatever  labor  and  expense  is  necessary  to 
obey  the  order  as  well.  This  is  often  obviously  more 
than  it  would  be  merely  to  order  him  not  to  do  some- 
thing, to  refrain,  by  the  injunction;  hence  the  balance 
in  his  favor  against  granting  the  injunction  is  by  so 
much  increased.  This  is  apparently  what  Lord  Thur- 
low  had  in  mind  in  an  early  case  in  which  he  refused 
to  order  a  ditch  filled  up  on  motion  saying:  "I  do  not 
like  granting  these  injunctions  on  motion.  The  ditch 
may  be  a  mile  long."^^^  Yet  if  the  plaintiff's  case  is 
strong  enough  to  make  the  balance  of  injury  favorable 
to  him,  the  courts  have  from  the  time  of  Lord  Thurlow 
himself  granted  mandatory  temporary  injunctions  in 
his  behalf;  the  test  for  granting  or  refusing  it  is  the 
same  as  for  prohibitory  injunctions,  the  difference  is  in 
the  facts.  ^^^ 

141  Hilton  V.  Earl  of  Granville,  1  Craig  &  P.  283,  297;  Wynstanley 
V.  Lee,  2  Swanst.  333,  335;  Eden  v.  Firth,  1  H.  &  M.  573;  Copper 
King  V.  Wabash  Min.  Co.,  114  Fed.  991;  Daugherty  ete.  Co,  v.  Kit- 
tanning  etc,  Co.,  178  Pa.  St.  215,  35  Atl.  1111;  Toyalaek  Township  v. 
MonoursviUe  etc,  Ky.  Co.,  7  Pa.  Dist.  Rep.  291;  Coe  v.  Winnipisiogee 
etc.  Co.,  37  N.  H.  254;  Duncan  v,  Hayes,  22  N.  J,  Eq.  25;  Department 
of  Buildings,  City  of  N.  Y.  v.  Jones,  24  Misc.  Eep.  490,  53  N.  Y. 
Supp.  836;  Amelia  etc,  Co.  v.  Tenn.  etc.  Co.,  123  Fed.  811, 

142  See  Blakemore  v.  Glamorganshire  Canal  Navigation,  1  Mylne 
&  K.  154,  185;  Lord's  Exrs.  v.  Carbon  etc.  Co.,  38  N.  J.  Eq.  452, 
459;  Herbert  v.  Pennsylvania  R.  R.  Co.,  43  N.  J,  Eq.  21,  10  Atl,  872. 

143  Anon.,  1  Ves.  140. 

144  Mandatory  temporary  iTi.iiin(^tinns  were  allowed  in  the  follow- 
ing cases  of  nuisance:  Robinson   v.  Lord   Byron,  1  Brown  C.  C.  588; 


§  536  EQUITABLE  EEMEDIES.  920 

§  536.  Complete  Relief — While  the  only  ground  for 
coming  into  equity  in  cases  of  nuisance  is  the  right  to 
an  injunction,  yet  a  party  who  has  established  this  jur- 
isdictional right  will  be  given  all  the  relief,  both  equi- 
table and  legal  in  nature,  to  which  his  case  entitles  him. 
The  principle  on  which  this  is  done  is  the  same  that  al- 
ways controls  the  action  of  courts  of  equity,  viz.,  to  pre- 
vent the  obvious  hardship  of  compelling  a  party  to 
seek  relief  from  a  single  wrong  in  two  suits  prosecuted 
in  different  courts.  Hence,  in  addition  to  an  injunc- 
tion, damages  for  the  past  nuisance  will  be  awarded.  ^^^ 
And  if,  after  suit  is  brought  and  the  jurisdiction  in 
equity  has  attached,  the  defendant  ceases  to  commit 
the  nuisance,  none  the  less  the  equity  court  will  give 
the  plaintiff  damages  and  not  turn  him  out  of  court  and 
compel  him  to  bring  another  action  at  law;^^^  and  it  is 

Hepburn  v.  Gordon,  2  Hen.  &  M.  345;  Westminster  Co.  v.  Clayton, 
36  L.  J.  Ch.  476;  Johnson  v.  Superior  Court  of  Tulare  Co.,  65  Cal. 
567,  4  Pac.  575;  New  Eice  Milling  Co.  v.  Komero,  105  La.  Ann.  439, 
29  South.  876.  They  were  refused  in  Hagen  v.  Beth,  118  Cal.  330,  50 
Pac.  425;  Village  of  Keeseville  v.  Keeseville  etc.  Co.,  59  App.  Div. 
381,  69  N,  Y.  Supp.  249;  People  v.  People's  etc.  Co.,  32  Misc.  Kep. 
478,  66  N.  Y.  Supp.  529;  Anon.,  1  Ves.  140;  Blakemore  v.  Glamorgan- 
shire Canal  Navigation,  1  Mylne  &  K.  154.  See,  further,  on  the  sub- 
ject of  preliminary  mandatory  injunction,  post,  Vol.  II,  chapter  XXX. 

145  Eoberts  v.  Vest,  126  Ala.  355,  28  South.  412;  Piatt  v.  City  of 
Waterbury,  72  Conn.  531,  77  Am.  St.  Eep.  335,  45  AtL  154,  48  L.  E. 
A.  691;  Coe  v.  Winnipisiogee  etc.  Co.,  37  N.  H.  254;  Lonsdale  v. 
City  of  Woonsocket,  25  E.  I.  428,  56  Atl.  448;  Keppel  v.  Lehigh  etc. 
Co.,  9  Pa.  Dist.  Eep.  219;  Eichi  v.  Chattanooga  etc.  Co.,  105  Tenn. 
651,  58  S.  W.  646;  Davis  v.  Lambertson,  56  Barb.  480;  Seaman  v, 
Lee,  10  Hun,  607;  Eothery  v.  New  York  Eubber  Co.,  24  Hun,  172; 
Baker  v.  McDaniel,  178  Mo.  447,  77  S.  W.  531.  Contra,  Miner 
V.  Nichols,  24  E.  I.  199,  52  Atl.  893.     See,  also.  Pom.  Eq.  Jur.,  §  237. 

146  Smith  V.  Ingersoll  etc.  Co.,  7  Misc.  Eep.  374,  27  N.  Y.  Supp. 
907;  Moon  v.  Nat.  etc.  Co.  of  Am.,  31  Misc.  Eep.  631,  66  N.  Y.  Supp. 
33;  Whaley  v.  City  of  New  York,  83  App.  Div.  6,  81  N.  Y.  Supp. 
1043;  McCarthy  v.  Gaston  Eidge  Mill  &  M.  Co.,  144  Cal.  542,  73 
Pac.  7.  Of  course  damages  will  not  be  allowed  if  the  plaintiflf's 
right  to  an  injunction  at  the  time  of  filing  his  bill  is  not  established : 


921  INJUNCTION  AGAINST  NUISANCE.  S  537 

sometimes  held  that  the  injunction  also  will  issue  even 
in  this  case.^^'^ 

§  537.  Estoppel,  Acquiescence,  Laches. — These  subjects 
require  no  special  treatment  here,  being  adequately 
discussed  elsewhere.^^^  An  important  distinction  com- 
mon to  all  cases  in  which  an  injunction  is  sought  in 
aid  of  a  legal  right  is  well  brought  out  in  the  follow- 
ing quotation  from  a  case  in  which  the  maintenance 
and  operation  of  an  elevated  street  railroad  adjacent 
to  the  plaintiff's  property  was  sought  to  be  enjoined : 
"The  defendants,  failing  to  establish  the  bar  of  the  stat- 
ute of  limitations,  still  insist  that  the  affiliated  princi- 
ple of  acquiescence  constitutes  a  defense  to  the  action. 
There  is  no  foundation  in  the  case  for  a  claim  that  the 
plaintiff's  conduct  amounted  to  an  estoppel,  and,  in- 
deed, the  claim  is  not  seriously  urged  by  the  appellants. 
It  is  obvious  that  such  conduct  has  never  led  the  de- 
fendants into  a  line  of  action  which  they  would  not 
otherwise  have  pursued,  or  encouraged  them  to  expend 
money  or  make  improvements  by  reason  of  their  re- 
liance upon  the  alleged  inaction  or  acquiescence  of  the 
plaintiff.  They  inaugurated  their  enterprise  in  the 
face  of  persistent  opposition  by  the  plaintiff"  and  other 
abutting  owners,  and  carried  it  to  completion  while 
earnest  efforts  were  being  made  to  prevent  them.     The 

Kosenheimer  v.  Standard  etc.  Co.,  39  App.  Div.  482,  57  N.  Y.  Sup? 
330. 

147  Dean  etc.  Chester  v.  Smelting  Corp.,  85  L.  T.  67.  But  see 
Barber  v.  Penley,  [1893]  2  Ch.  447;  Carlin  v.  Wolff  (Mo.),  51  S.  W. 
679.  See  contra,  Perry  v.  Howe  Co-op.  Creamery  Co.  (Iowa),  101  N. 
W.  150  (citing  Pom.  Eq.  Jur.,  §  1357).  In  Carlisle  v.  Cooper,  21 
N.  J.  Eq.  576,  the  defendant  partially  abated  the  nuisance  after  the 
bill  was  filed  and  then  insisted  that  the  injunction  should  be  refused 
because  the  legal  remedy  was  now  adequate,  but  the  point  was  not  al- 
lowed. 

148  See  2  Pom.  Eq.  Jur.,  §§  816-821;  <iiiU\  chapter  I. 


S  537  EQUITABLE  EEMEDIES.  922 

case  is  entirely  destitute  of  proof  showing  the  existence 
of  any  elements  of  estoppel,  and  the  defendants  are, 
therefore,  driven  to  rely,  in  this  respect  upon  the  mere 
inaction  of  the  plaintiff  to  prosecute  his  claim.  But 
this  question,  we  also  think,  is  governed  by  authority 
equally  conclusive  with  that  relating  to  the  statute  of 
limitations.  The  doctrine  of  acquiescence  as  a  defense 
to  an  equity  action  has  been  generally  limited  here  to 
those  of  an  equitable  nature  exclusively,  or  to  cases 
where  the  legal  right  has  expired,  or  the  party  has  lost 
his  right  of  property  by  prescription  or  adverse  pos- 
session. Whatever  may  be  the  rule  in  other  states,  it 
can  be  said  that  here  no  period  of  inaction  merely  has 
been  held  sufficient  to  justify  a  nuisance  or  trespass, 
unless  it  has  continued  for  such  length  of  time  as  will 
authorize  the  presumption  of  a  grant.  The  principle 
that  so  long  as  the  legal  right  exists  the  owner  is  en- 
titled to  maintain  his  action  in  equity  to  restrain  vio- 
lations of  this  right  has  been  uniformly  applied  in  this 
court."^^^ 

149  Per  Enger,  Ch.  J.,  in  Galway  v.  Metropolitan  etc.  Co.,  128  N. 
Y.  132,  23  N.  E.  479,  13  L.  R.  A,  788.  To  the  same  effect  are  Camp- 
bell V.  Seaman,  63  N.  Y.  568,  20  Am.  Eep.  567,  affirming  2  Thomp.  & 
C.  231;  Burden  v.  Stein,  27  Ala.  104,  62  Am.  Dec.  758;  Carlisle  v. 
Cooper,  21  N.  J.  Eq.  576;  2  Pom.  Eq.  Jur.,  §  817,  at  note  2.  See  Beek- 
man  v.  Third  Ave.  etc.  Co.,  13  App.  Div.  279,  43  N.  Y.  Supp.  174; 
Heilman  v.  Lebanon  etc.  Co.,  175  Pa.  St.  188,  34  Atl.  647.  The  fol- 
lowing cases  contain  discussions  of  such  estoppel  and  acquiescence 
as  will  bar  a  plaintiff's  right  to  enjoin  nuisances:  Priewe  v.  Wiscon- 
sin etc.  Co.,  103  Wis.  537,  74  Am.  St.  Eep.  904,  79  N.  W.  780;  Herr 
V.  Kentucky  etc.  Asylum,  22  Ky.  Law  Eep.  1722;  Fisk  v.  City  of  Hart- 
ford, 70  Conn.  720,  66  Am.  St.  Eep.  147,  40  Atl.  906;  Clifton  Iron 
Co.  V.  Dye,  87  Ala.  468,  6  South.  192;  Sheldon  v.  Eockwell,  9  Wis. 
166,  76  Am.  Dec.  265;  Townsend  v.  Epstein,  93  Md.  537,  86  Am.  St. 
Eep.  441,  49  Atl.  629,  52  L.  E.  A.  409;  Stowell  v.  Tucker,  7  Idaho,  312, 
62  Pac.  1033;  City  of  Leavenworth  v.  Douglass,  59  Kan.  416,  53  Pac. 
123;  Pennsylvania  etc.  Co.  v.  Montgomery  etc.  Ey.,  167  Pa.  St.  62, 
46  Am.  St.  Eep.  659,  31  Atl.  468,  36  Wkly.  Not.  Cas.  153,  27  L.  E.  A. 
766;  McKee  v.  City  of  Grand  Eapids  (Mich.),  100  N.  W.  580. 


923  INJU^'CTION   AGAINST  NUISANCE.  $  533 

.  §  538.  Parties. — The  parties  who  have  a  sufficient  in- 
terest to  enjoin  a  nuisance  are,  in  general,  those  who 
sustain  legal  injury.  A  landlord  may  do  so  if  the  nui- 
sance is  one  which  will  permanently  damage  the  re- 
version ;^^^  not  if  it  is  one  that  will  not  do  so,  and  is 
likely  to  terminate  before  the  tenancy  ends.^°^  A  ten- 
ant may  also  procure  an  injunction  even  when  his  ten- 
ancy is  very  brief  or  shortly  to  end,^^^  though  there  are 
intimations  that  he  must  join  the  reversioner  as  a  co- 
plaintiff.^^^  A  town  has  been  held  entitled  to  main- 
tain suit  against  an  obstruction  of  a  highway  because 
of  its  liability  to  an  action  for  damages  by  any  person 
injured  by  the  obstruction.^^*     On  the  other  hand,  a 

150  Peck  V.  Elder,  3  Sandf.  126;  Faulkenbury  v.  Wells,  28  Tex. 
Civ.  App.  621,  68  S.  W.  327;  Shelf er  v.  London  etc.  Co.,  [1895]  L.  E. 

1  Ch.  D.  287.     But  see  Goodall  v.  Crofton,  33  Ohio  St.  271,  31  Am. 
Rep.  535. 

151  Jones  V.  Chappel,  L.  E.  20  Eq.  539;  Broder  v.  Saillard,  L.  R. 

2  Ch.  D.    692;  Cooper    v.    Crabtree,  L.    E.  20    Ch.  D.    589;  Matt  v. 
Shoolbred,  L.  E.  20  Eq.  22. 

152  Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147,  34  N.  E.  85,  20  L. 
E.  A.  844;  Hill  v.  Schneider,  13  App.  Div.  299,  4  N.  Y.  Ann.  Cas.  70, 
43  N.  Y.  Supp.  1  (tenancy  to  expire  in  less  than  a  year) ;  Broder  v. 
Saillard,  L.  E.  2  Ch.  D.  692;  Shelfer  v.  London  etc.  Co.,  [1895]  1  Ch. 
D.  287;  Inchbald  v.  Eobinson,  L.  E.  4  Ch.  388  (tenant  from  year  to 
year) ;  Jones  v.  Chappel,  L.  E.  20  Eq.  539  (tenant  from  week  to  week 
may  enjoin — dictum);  Bly  v.  Edison  etc.  Co.,  172  N.  Y.  1,  64  N.  E. 
745,  58  L.  E.  A.  500.  See  McNulty  v.  Mt.  Morris  etc.  Co.,  172  N.  Y, 
410,  65  N.  E.  196,  in  which  a  tenant  whose  term  expired  pending  suit 
was  denied  an  injunction. 

153  Broder  v.  Saillard,  L.  E.  2  Ch.  D.  692;  Jones  v.  Chappel,  L.  R. 
20  Eq.  539. 

154  Town  of  Burlington  v.  Schwarzman,  52  Conn.  181,  52  Am.  Eep. 
571;  Waukesha  v.  Village  of  Waukesha,  83  Wis.  475,  53  N.  W.  675; 
Pittsburgh  v.  Epping  etc.  Co.,  194  Pa.  St.  318,  45  Atl.  129.  See, 
also,  Needham  v.  New  York  etc.  E.  E.,  152  Mass.  61,  25  N.  E. 
20;  Coast  etc.  Co.  v.  Borough  of  Spring  Lake,  56  N.  J.  Eq.  615,  51 
L,  E.  A.  657,  36  Atl.  21;  Webb  v.  City  of  Demopolis  (Ala.),  13  South. 
289;  Tp.  of  Plymouth  v.  Chestnut  Hill  etc.  Co.,  168  Pa.  St.  181,  32 
/tl.  19;  Woodbridge  Tp.  v.  Earitan  etc.  Co.,  64  N.  J.  Eq.  169,  53  Atl. 
175. 


§  539  EQUITABLE  REMEDIES.  924 

county  has  been  enjoined  from  allowing  a  nuisance 
to  continue  because  the  remedy  by  mandamus  was  in- 
adequate ;^^'^  and  a  landowner  from  permitting  a  pub- 
lic nuisance  to  continue  on  his  land,  though  he  did  not 
cause  it  himself. ^^®  It  has  also  been  held  that  a  grantee 
of  one  who  has  been  enjoined  from  a  nuisance  con- 
nected with  the  use  of  the  land,  is  bound  by  the  in- 
junction, though  not  a  party  to  the  suit.^^^  That  the 
person  committing  the  nuisance  is  a  tenant,  is,  of  course, 
no  answer  to  a  bill  against  him,^^^  and  the  lessor  may 
also  in  such  case  be  enjoined  if  he  threatens  to  con- 
tinue the  nuisance  after  the  termination  of  the  ten- 
ancy 


159 


§  539.  Reasonable  Use  not  a  Defense. — In  this  and  the 
two  succeeding  paragraphs  the  questions  involved  are 
purely  legal,  having  to  do  with  the  substantive  law  of 
nuisance  rather  than  the  equitable  remedy.  They  will 
require,  therefore,  no  more  than  a  bare  statement  of 
the  law,  with  a  citation  of  a  few  cases  in  which  it  has 
been  aj)plied  in  suits  for  injunction.  It  is  no  defense 
to  an  action  at  law  or  a  bill  for  an  injunction  against 
a  nuisance  for  the  defendant  to  say  he  is  conducting 
himself  reasonably  in  doing  the  thing  which  is  com- 
plained of.  "The  application  of  principle  governing 
the  jurisdiction  of  the  court  in  cases  of  nuisance  does 
not  depend  on  the  question  whether  the  defendant  is 
using  his  own  reasonably  or  otherwise.     The  real  ques- 

155  Lefrois  v.  Monroe  County,  24  App.  Div.  421,  48   N.  Y.   Supp. 
519. 

156  Attorney-General  v.  Tod  Headley,  [1897]  1  Ch.  560. 

157  Ahlers  v.  Thomas,  24  Nev.  407,  77  Am.  St.  Eep.  820,  56  Pac 
93. 

158  Broder  v.   Saillard,   L.   R.   2   Cli.  D.  692;    Attomey-Generml   ▼. 
Props,  etc.  Canal,  L.  R.  2  Eq.  71. 

159  Attorney-General  v.  Props,  etc.  Canal,  L.  R.  2  Eq.  71. 


925  INJUNCTION   AGAINST  NUISANCE.  §  540 

tion  is,  does  he  injure  his  neighbor?"^ ^"  It  is  perhaps 
accurate  to  say,  therefore,  that  there  can  be  no  such 
thing  as  a  nuisance  resulting  from  reasonable  conduct. 
Nuisance  is  not  based  on  any  rule  of  negligent  or  will- 
fully wrongful  conduct,  but  rather  on  rules  of  policy 
which  do  not  allow  a  person  to  do  those  acts  which  con- 
stitute nuisances.  If  he  does  so,  he  is  not  acting  reason- 
ably.^ «^ 

§  54.0.  Nor  the  Fact  that  Other  Causes  Contribute. — Nor 
is  it  a  defense  that  other  persons  or  other  causes  than 
the  defendant's  wrongful  acts  contribute  to  the  nui- 
sance. If  the  plaintiff  wishes  to  submit  to  certain  nui- 
!;'.ances,  that  is  no  reason  for  allowing  the  defendant  to 
impose  one  on  him  against  his  will.^^^  And  if  the  nui- 
sance results  from  the  combined  effect  of  separate  acts 
of  the  defendant  and  others,  that  also  is  no  defense  to 
a  bill  for  an  injunction.^ ^^ 

160  Eeinbardt  v.  Mentasti,  L.  E.  42  Ch.  D.  685. 

161  Attorney-General  v.  Cole,  [1901]  1  Ch.  D.  205;  Broder  v.  Sail- 
lard,  L.  R.  2  Ch.  D.  692;  Callanan  v.  Gilman,  107  N.  Y.  360,  1  Am. 
St.  Eep.  831,  14  N.  E.  264;  Filson  v.  Crawford,  23  N.  Y.  St.  Eep. 
355,  5  N.  Y.  Supp.  882;  Susquehanna  etc.  Co.  v.  Malone,  73  Md.  268, 
25  Am.  St.  Eep.  595,  20  Atl.  900,  9  L.  E.  A.  737  (action  at  law). 
Contra,  Sanders-Clark  v.  Grosvenor  etc.,   [1900]   2  Ch.  D.  373. 

162  Eichards  v.  Daugherty,  133  Ala.  569,  31  South.  934;  Stone  V. 
Eoscommon  etc.  Co.,  59  Mich.  24,  26  N.  W.  216;  Weston  Paper  Co.  t. 
Pope,  155  Ind.  394,  57  N.  E.  719,  56  L.  E.  A.  899;  Butler  v.  Village 
of  White  Plains,  59  App.  Div.  30,  69  N.  Y.  Supp.  193;  Indianapolis 
etc.  Co.  V.  American  etc.  Co.,  57  Fed.  1000,  affirming  53  Fed.  970; 
Eichmond  etc.  Co.  v,  Atlantic  etc.  Co.,  10  E.  I.  106,  14  Am.  Eep.  658; 
Jacnbson  v.  Van  Boening,  48  Neb.  80,  48  Am.  St.  Eep.  684,  66  N.  W. 
993,  32  L.  E.  A.  229;  Pittsburg  etc.  Co.  v.  Town  of  Crothersville,  159 
Ind.  330,  64  N.  E.  914.  But  see  Mackey-Smith  v.  Crawford,  56  App. 
Div.  136,  67  N.  Y.  Supp.  541. 

163  Lamberton  v.  Mellish,  [1894]  L.  E.  3  Ch.  D.  163;  People  v.  Gold 
Eun  etc.  Co.,  66  Cal.  138,  56  Am.  Eep.  80,  4  Pac.  1152.  Contra,  West 
etc.  Co.  V.  Moroni  etc.  Co.,  21  Utah,  229,  61  Pac.  16.  See  Hillman  v. 
Newington,  57   Cal.  56. 


§§  5^1,542  EQUITABLE  EEMEDIES.  926 

§  541.  Legalized  Nuisances. — Acts  which  at  common 
law  are  nuisances  may  be  legalized  by  statute,  if  such 
legislation  does  not  amount  to  the  taking  or  damaging 
of  property  forbidden  by  constitutional  provisions.^  ^^ 
The  effect  of  such  statutes  is  to  take  away  the  wrongful 
character  of  the  acts  legalized ;  they  are  no  longer  torts, 
and  hence,  the  remedy  by  injunction  against  them,  of 
course,  ceases,^  ^^ 

§  542.  Public  Nuisances. — Public  nuisances,  as  a  sub- 
ject of  equity  jurisdiction,  require  only  a  brief  dis- 
cussion in  this  place,  because  the  equitable  doctrines 
applicable  are  essentially  the  same  as  those  applied  to 
private  nuisances;  and  cases  to  support  the  text  of  this 
chapter  have  been  drawn  from  both  classes  without 
distinction.  "It  is  on  the  ground  of  injury  to  property 
that  the  jurisdiction  of  this  court  must  rest;  and  tak- 
ing it  to  rest  upon  that  ground,  the  only  distinction 
which  seems  to  me  to  exist  between  cases  of  public  nui 
sance  and  private  nuisance  is  this, — that  in  cases  of  pri- 
vate nuisance  the  injury  is  to  individual  property,  and 
in  cases  of  public  nuisance  the  injury  is  to  the  prop- 
erty of  mankind.  I  think,  therefore,  that  the  same 
principle  must  govern  the  question  as  to  the  interfer- 
ence of  the  court,  whether  the  case  be  one  of  public  or 
of  private  nuisance.  What,  then,  is  the  principle  by 
which  the  court  ought  to  be  governed?  I  take  it  to  be 
this:  whether  the  extent  of  the  damage  and  injury  be 

164  See  Woodruff  v.  N.  Bloomfield  etc.  Co.,  9  Saw.  441,  18  Fed.  753; 
Le  Clercq  v.  Trustees  of  Gallipolis,  7  Ohio,  217,  28  Am.  Dee.  641. 

165  Jordeson  v.  Sutton  etc.  Co.,  [1898]  2  Ch.  D.  614,  [3899]  2  Ch. 
218;  Davis  v.  Mayor  of  New  York,  14  N.  Y.  (4  Kern)  506,  67  Am. 
Dec.  186;  Hoey  v.  Gilroy,  129  N.  Y.  132,  29  N.  E.  85;  Sayre  v.  Mayor 
etc.  of  Newark,  60  N.  J.  Eq.  361,  83  Am.  St.  Eep.  629,  45  Atl.  985; 
Grey  (Attorney-General)  v.  Mayor  etc.  of  Patterson,  60  N.  J.  Eq. 
385,  83  Am.  St.  Eep.  642,  45  Atl.  994;  McWethy  v.  Aurora  etc.  Co., 
202   ni.   218,   67   N.   E.   9. 


927  INJUNCTION  AGAINST  NUISANCE.  {  542 

such  that  the  law  will  not  afford  an  adequate  rem- 
g(jy  )n66  Here,  too,  as  in  cases  of  private  nuisance,  the 
chief  causes  of  inadequacy  lie  in  the  fact  that  the  in- 
jury is  irreparable  or  will  occasion  a  multiplicity  of 
suits.^^^  If  there  is  a  substantial  dispute  as  to  fact  or 
law,  and  the  question  is  in  doubt,  a  trial  at  law  will  be 
required  before  equity  will  intervene.^ ^*  A  purely 
threatened  public  nuisance  may  be  enjoined,  if  it  is 
shown  to  be  imminent  and  serious.^  ^'  Damage  will  be 
required  or  not  according  as  it  is,  or  is  not,  necessary  to 

166  Per  Turner,  L,  J.,  in  Attorney-General  v.  Sheffield  etc.  Co.,  3 
De  Gex,  M.  &  G.    304. 

167  Suits  on  behalf  of  the  public:  Attorney-General  v.  Sheffield 
etc.  Co.,  supra;  Attorney-General  v.  Cambridge  etc.  Co.,  17  Week. 
Eep.  145,  4  Ch.  App.  71;  Attorney-General  v.  Gee,  L.  E.  10  Eq.  131; 
Town  of  Newcastle  v,  Haywood,  67  N.  H.  178,  37  Atl.  1040;  State  v. 
Paterson,  14  Tex.  Civ.  App.  465,  37  S.  W.  478;  State  v.  Mayor 
etc.  of  Mobile,  5  Port.  (Ala)  279,  30  Am.  Dec.  564.  Suits  by 
private  individuals:  Kenney  v.  Consumers'  etc.  Co.,  142  Mass. 
417,  8  N.  E.  138;  Attorney-General  ^.  Sheffield  etc.  Co.,  3  De 
Gex,  M.  &  G.  804;  >!23B  t.  Board  of  Freeholders,  13  N.  J.  Eq.  68; 
Whaley  v.  TT'iison,  112  Ala.  627,  20  South.  922,  citing  4  Pom,  Eq.  Jur. 
5  lo49;  Milhau  v.  Sharp,  27  N.  Y.  611,  84  Am.  Dec.  314;  Georgia 
Chemical  etc.  Co.  v.  Colquitt,  72  Ga.  172;  Bigelow  v.  Hartford  Bridge 
Co.,  14  Conn.  565,  579,  36  Am.  Dec.  502;  Harlan  etc.  Co.  v.  Paschall, 
5  Del.  Ch.  435;  Van  Wegenen  v,  Cooney,  45  N.  J.  Eq.  24,  16  Atl.  689. 
In  Milhau  v.  Sharp,  supra,  the  court  said:  "To  entitle  a  plaintiff 
to  relief  by  injunction  who  is  sustaining,  or  about  to  sustain  a 
peculiar  injury  from  a  public  nuisance,  it  is  also  necessary  that  the 
injury  should  be  such  as  cannot  be  well  or  adequately  compensated  in 
damages  at  law  or  such  as  from  its  continuance  or  permanent  mis- 
chief must  occasion  a  constantly  recurring  grievance  which  cannot 
be  otherwise  prevented,  but  by  injunction."  For  a  fuller  discus- 
sion of  the  grounds  of  equity  jurisdiction,  see  ante,  §§  514ff, 

168  Mohawk  etc.  Co.  v.  Utica  etc.  Co.,  6  Paige,  554;  Attorney- 
General  V.  Cleaver,  18  Ves.  217;  Earl  of  Eipon  v.  Hobart,  3  Mylne  & 
K.  169;  Attorney-General  v.  Hunter,  1  Dev.  Eq.  (16  N.  C.)  12.  See 
ante,  §§  519-522. 

169  Attorney-General  v.  Steward,  20  N.  J.  Eq.  (5  C.  E.  Green)  415; 
County  -of  Yuba  v.  Cloke,  79  Cal.  239,  21  Pac.  740;  City  of  Eochester 
V.  Eriekson,  46  Barb.  92.     See  ante,  §§  523-525. 


i  542  EQUITABLE  EEMEDIES.  928 

maintain  an  action  at  law.^'^®  All  public  nuisances  are 
crimes,  and  so,  as  before  pointed  out,  the  entire  juris- 
diction of  equity  over  them  is  a  denial  of  the  conten- 
tion that  the  mere  criminality  of  an  act  precludes  equi- 
table intervention.^ '^^  Public  nuisances  may  be  created 
by  statute,^'^^  and,  conversely,  common-law  public  nui- 
sances may  be  legalized  by  statute.^'^^  The  balance 
of  injury  doctrine  is  subject  to  the  same  differences  of 
holding  as  in  cases  of  private  nuisance.^"^*     It  is  gen- 

170  This  statement  is  subject  to  the  qualifications  suggested  ante, 
§  526.  In  accordance  with  it  are  the  holdings  that  purprestures 
aiay  be  enjoined,  though  there  is  no  damage  shown,  since  the  state  or 
crown  has  the  right  that  its  property  should  not  be  encroached  upon: 
People  V.  Vanderbilt,  28  N.  Y.  396,  84  Am.  Dec.  351,  affirming  38 
Barb.  282;  Attorney-General  v.  Cohoes  Co.,  6  Paige,  133,  29  Am,  Dec. 
755;  Attorney-General  v.  Eau  Claire,  37  "Wis.  400;  Eevell  v.  People, 
177  111.  468,  69  Am.  St.  Eep.  257,  52  N.  E.  1052,  43  L.  E.  A.  790.  See 
Wood  on  Nuisances  (3d  ed.),  pp.  107-125.  But  for  a  public  nuisance 
generally,  actual  damage  must  be^  proved:  See  People  v.  Mould,  37 
App.  Div.  35,  55  N.  Y.  Supp.  453,  reversing  24  Misc.  Eep,  287,  52 
N,  Y,  Supp.  1032,  and  cases  cited:  Town  of  Newcastle  v,  Haywood, 
67  N.  H.  178,  37  Atl.  1040.  See,  however,  Attorney-General  v. 
Shrewsbury  etc.  Co.,  L.  E.    21  Ch.  D.  752. 

171  See  ante,  §  527,  and  note  8.  On  the  general  subject,  see  ante, 
chapter  XXI, 

172  Carleton  v.  Eugg,  149  Mass.  550,  14  Am.  St.  Eep.  446,  22  N.  E, 
55,  5  L.  E.  A,  193  (saloon);  State  v,  Crawford,  28  Kan.  726,  42  Am. 
Eep.  182  (saloon);  State  v,  Noyes,  30  N.  H,  279  (bowling-alley); 
State  v.  Marston,  64  N,  H,  603,  15  Atl.  222  (saloon);  State  v. 
Saunders,  66  N.  H.  39,  25  Atl.  588,  18  L.  E,  A,  646  (saloon);  State  v. 
Lawler,  85  Iowa,  564,  52  N.  W,  490  (saloon);  State  v.  Seeverson,  88 
Iowa,  714,  54  N.  "W.  347  (saloon);  State  v,  Greenway,  92  Iowa,  472, 
61  N.  W.  239  (saloon);  State  v.  Van  Vliet,  92  Iowa,  476,  61  N,  W. 
241  (saloon);  Carter  v.  Steyer,  93  Iowa,  533,  61  N,  W.  956;  Detroit 
etc,  Co.  V,  Eldredge,  109  Mich.  371,  67  N.  W,  531  (construction  of 
road  from  other  material  than  that  required  by  statute.)  See  ante, 
§  527,  and  note  101. 

173  Davis  V,  Mayor  etc.  N,  Y.,14  N.  Y,  (4  Kern.)  506,  67  Am. 
Dec.  186;  Hoey  v.  Gilroy,  129  N,  Y,  132,  29  N,  E.  85;  Grey,  Attorney- 
General,  V.  City  of  Paterson,  60  N,  J.  Eq.  385,  83  Am,  St,  Eep,  642, 
45  Atl,  995,  48  L.  E.  A,  717,     See  ante,  §  541, 

174  That   it   will   be   applied:    Grey,   Attorney-General,    v.    City   of 


929  INJUNCTION  AGAINST  NUISANCE.  I  542 

erally  held  that  a  plaintiff  may  enjoin  a  nuisance  even 
though  he  himself  easily  could  avoid  or  remove  it.^^^ 
The  relief  given  is  adjusted  to  the  needs  of  the  particu- 
lar case;  though  usually  prohibitive,  it  may  be  by  man- 
datory injunction  j^'^'^  it  will  save  to  the  defendant  the 
right  to  continue. the  act  complained  of  in  a  harmless 
way  if  such  thing  is  possible ;^^'^  temporary  injunctions 
are  applied  here  as  elsewhere,  subject  to  the  general 
rules  governing-  their  use;^'^^  and  complete  relief,  legal 
as  well  as  equitable,  will  be  given.^'^^  Inasmuch  as  a 
I)rescriptive  right  to  commit  a  nuisance  as  against 
the  public  cannot  arise,  the  public  cannot  be  pre- 
cluded by  laches  at  all  from  procuring  an  injunc- 
tion.^^°  The  parties  who  may  enjoin  a  public  nuisance 
are,  first,  the  public,  through  the  proper  public  offi- 

Paterson,  60  N.  J.  Eq.  385,  83  Am.  St.  Eep.  642,  45  Atl.  995.  48  L. 
E.  A.  717.  That  it  will  not  be  applied,  see  the  cases  cited,  ante,  § 
531,  note  117. 

175  Town  of  Burlington  v.  Schwarzman,  52  Conn.  181,  52  Am,  Kep. 
571;  Martin  v.  Marks,  154  Ind.  549,  57  N.  E.  249. 

176  Pascagoula  etc.  Co.  v.  Dixon,  77  Miss.  587  78  Am.  St.  Kep. 
537,  28  South.  724.     See,  also,  cases  cited  a7ite,  §  543,  note  125. 

177  Earl  of  Eipon  v.  Hobart,  3  Mylne  &  K.  169;  Wiuchell  v.  City  of 
Waukesha,  110  Wis.  101,  84  Am.  St.  Eep.  902,  85  N.  W.  668. 

178  Earl  of  Eipon  v.  Hobart,  3  Mylne  &  K.  169,  Cooper  temp^ 
Brougham,  333;  Attorney-General  v.  Steward,  20  N.  J.  Eq.  415;  City 
of  Wilmington  v.  Addicks  (Del.  Ch.),  47  Atl.  366;  Attorney-General 
V.  Sheffield  etc.  Co.,  3  De  Gex,  M.  &  G.  304;  Attorney-General  v. 
Cohoes,  6  Paige,  133,  29  Am.  Dec.  755;  Attorney-General  v.  Steward, 
21  N.  J.  Eq.  340,     See  ante,  §  535. 

179  Eichi  V.  Chattanooga  etc.  Co.,  105  Tenn.  651,  58  S.  W.  646. 

180  People  V.  Gold  Eun  etc.  Co.,  66  Cal.  138,  56  Am.  Eep.  80,  4  Pac. 
1152.  And  it  is  held  that  the  same  doctrine  applies  to  suits  by 
private  individuals  who  are  specially  damaged:  Mills  v.  Hall,  9 
Wend.  315,  24  Am,  Dec.  160;  Woodruff  v.  N.  Bloomfield  etc.  Co.,  9 
Saw.  513,  18  Fed.  753;  Bowen  v.  Wendt,  103  Cal.  236,  37  Pac  149. 
See  Clerk  &  Lindsell,  The  Law  of  Torts,  pp.  349,  350. 

Equitable  Eemedies,  Vol.  I — 59 


§  542  EQUITABLE  REMEDIES.  930 

cial;^^^  second,  private  parties.  While  the  public  which 
acts  is  generally  the  state,  yet  by  virtue  of  legislative 
delegation,  often  implied,  it  may  be  a  municipality  that 
files  the  information.^^2  Public  nuisances  may  also  be 
enjoined  by  private  individuals  who  suffer  a  special 
damage.  ^^^ 

181  "In  the  case  of  a  public  nuisance,  the  remedy  at  law  is  in- 
dictment; the  remedy  in  equity,  is  information  at  the  suit  of  the 
attorney-general":  Per  Cranworth,  V.  C,  in  Soltau  v.  De  Held,  2 
Sim,  N.  S.,  133.  No  citation  of  cases  is  necessary  to  sustain  so 
familiar  a  rule. 

182  Town  of  Neshkoro  v.  Nest,  85  Wis.  126,  55  N.  W.  176;  Clayton 
County  V.  Herwig,  100  Iowa,  631,  69  N.  W.  1035;  Village  of  Buffalo 
V.  Harling,  50  Minn.  551,  52  N.  W.  931;  City  of  Huron  v.  Bank  of 
Volga,  8  S.  Dak.  449,  66  N.  W.  815;  City  of  Mt.  Clemens  v.  Mt. 
Clemens  etc.  Co.,  8  Det.  Leg.  N.  282,  127  Mich.  115,  86  N.  W,  537; 
People  V.  Equity  etc.  Co.,  141  N.  Y.  232,  36  N.  E.  194;  Village  of 
Pewaukee  v.  Savoy,  103  Wis.  271,  79  N.  W.  436,  50  L.  E.  A.  836.  In 
Village  of  Oxford  v.  Willoughby  (N.  Y.),  73  N.  E.  677,  a  village 
was  allowed  to  maintain  the  action.  The  right  of  towns  to  enjoin 
public  nuisances  is  sometimes  put  upon  the  ground  that  their  special 
interest  entitles  them  to  maintain  action  because  of  special  damage 
to  them.  See  supra,  §  538,  note  154.  Other  cases  of  injunction 
against  public  nuisances  at  the  suit  of  the  public  are:  Penn- 
sylvania V.  Wheeling  etc.  Co.,  13  How.  518,  14  L.  ed.  249;  Attorney- 
General  V.  Brighton,  [1900]  1  Ch.  276;  Morris  etc.  Co.  v.  Green- 
ville (N.  J.),  46  Atl.  638;  Streeter  v.  Stalnaker,  61  Neb.  205,  85 
N.  W.  47;  People  v.  Third  Ave.  E.  E.,  45  Barb.  68;  United  States 
V.  Debs,  64  Fed.  724;  State  v.  Meek,  112  Iowa,  338,  84  Am.  St.  Eep. 
342,  84  N.  W.  3,  51  L.  E.  A.  414;  Coosaw  Min.  Co.  v.  South  Caro- 
lina, 144  U.  S.  564,  12  Sup.  Ct.  689,  36  L.  ed.  537;  United  States 
V.  N.  Bloomfield  etc.  Co.,  53  Fed.  625;  Berks  County  v.  Heading 
City  etc.  Co.,  167  Pa.  St.  102,  31  Atl.  474,  36  Wkly.  Not.  Cas.  173; 
Citv  of  Detroit  v.  Detroit  City  etc.  Co.,  56  Fed.  867;  Grey  v.  New 
York  etc.  Co.,  56  N.  J.  Eq.  463,  40  Atl,  21;  Allegheny  City  v.  Millville 
etc.  Co.,  159  Pa.  St.  411,  28  Atl.  202. 

183  Injunctions  were  allowed  on  this  ground  in  the  following  cases: 
For   obstruction   of   streets   and  highways:  Savannah  etc.  Co.  Y.ShieU, 

33  Ga,  601;  Hill  v.  Hoffman  (Tenn.  Ch.  App.),  58  S.  W.  929;  Petti- 
bone  v.  Hamilton,  40  Wis.  402;  Martin  v.  Marks,  154  Ind.  549,  57  N. 
E.  249-  Green  v.  Oakes,  17  111.  249;  Ewell  v.  Greenwood,  26  Iowa,  377; 
Smith  v.  Mitchell,  21  Wash.  586,  75  Am.  St.  Eep.  858,  58  Pac.  667; 
Flynn  v.   Taylor,   127   N.   Y.   596,   28  .N.   E.   418,   14   L.   E.   A.   556; 


931  INJUNCTION  AGAINST  NUISANCE.  {  542 

D6  Witt  V.  Yan  Schoyk,  110  N.  Y.  7,  6  Am.  St.  Eep.  342,  17  N.  E.  425, 
affirming  35  Hun,  103;  Stevenson  v.  Pucci,  32  Misc.  Kep.  464,  66  N. 
Y.  Supp,  712;  Cabbell  v.  Williams,  127  Ala.  320,  28  South.  405;  New- 
come  V.  Crews,  98  Ky.  339,  32  S.  W.  947;  Brauer  v.  Baltimore  etc.  Co., 
99  Md.  367,  58  Atl.  21;  Thompson  v,  Maloney,  199  111.  276,  93  Am.  St. 
Eep.  183,  65  N.  E.  237;  Cereghino  v.  Or.  etc.  Co.,  26  Utah,  467, 
99  Am.  St.  Eep.  843,  73  Pac.  634;  Pence  v.  Bryant,  54  W.  Va. 
263,  46  S.  E.  275;  Illinois  Cent.  etc.  Co,  v.  Thomas,  75  Miss.  54, 
21  South.  601,  Central  etc.  Co.  v.  Metropolitan  etc.  Co.,  16  App. 
Div.  229,  44  N.  Y.  Supp.  752;  Hannum  v.  Media  etc.  Co.,  200  Pa. 
St.  44,  49  Atl.  789;  Irvine  v.  Atlantic  etc.  Co.,  42  N.  Y.  Supp. 
1103;  City  etc.  of  Montgomery  v.  Parker,  114  Ala.  118,  62  Am. 
St.  Eep.  95,  21  South.  452;  Longworth  v.  Sedevic,  165  Mo.  221,  65 
S.  W.  260;  Sherlock  v.  Kansas  etc.  Co.,  142  Mo.  172,  64  Am.  St.  Eep. 
551,  43  S.  W.  629;  Kalteyer  v.  Sullivan,  18  Tex.  Civ.  App.  488,  46 
S.  W.  288;  Pittsburgh  etc.  Co.  v.  Point  Bridge  Co.,  165  Pa.  St.  37, 
30  Atl.  511,  35  Wkly.  Not.  Cas.  393,  26  L.  E.  A.  323.  See,  also, 
Dean  v.  Ann  Arbor  E.  E.  (Mich.),  100  N.  W.  773;  Forbes 
v.  City  of  Detroit  (Mich.),  102  N.  W.  740  (encroachment  on 
street). 

For  obstruction  of  navigable  waters:  Milnor  v.  N.  G.  E.  Co.,  70  U. 
S.  (3  WaU.)  782,  16  L.  ed.  1;  Morris  v.  Graham,  16  Wash.  343,  53 
Am.  St.  Eep.  33,  47  Pac.  752;  Mayor  etc.  of  New  York  v.  Baum- 
berger,  7  Eob.  (N.  Y.)  219;  Walker  v.  Sheperdson,  2  Wis.  384,  60 
Am.  Dec.  423;  Eeyburn  v.  Sawyer,  135  N.  C.  328,  102  Am.  St.  Eep. 
555,  47   S.  E.   761. 

For  pollution  of  water:  Green   v.  Nunnemacher,  36  Wis.  50. 

For  flowaye  of  land:  Whitfield  v.  Eogers,  26  Miss.  84,  59  Am.  Dec. 
244. 

For  keeping  a  bawdy-house;  Cranford  v.  Tyrrell,  128  N.  Y.  341,  28 
N.  E.  514,  affirming  59  Hun,  618,  13  N.  Y.  Supp.  951;  Dempsie  v. 
Darling  (Wash.),  81  Pac.  152. 

For  interference  with  common  right  of  fishery:  Cherry  Point  Fish  Co. 
v.  Nelson,  25  Wash.  558,  7  Pac.  55. 

For  creating  a  stench:  Sayre  v.  Mayor  etc.  of  Newark,  58  N.  J.  Eq. 
136,  42  Atl.  1068;  Wilcox  v.  Henry  (Wash.),  77  Pac.  1055  (odors  from 
slaughter-house) . 

Statutory  nuisance:  Kaufman  v.  Stein,  138  Ind.  49,  46  Am.  St.  Eep. 
368,  37  N.  E.  333  (wooden  building  within  fire  limits).  Compare 
Lang  v.  Merwin  (Me.),  59  Atl.  1021  (injunction  against  gambling 
place,  at  suit  of  twenty  voters,  under  statute). 

Beer  garden:  Tron  v.  Lewis,  31  Ind.  App.  178,  66  N.  E.  490. 

Sunday  ball  games:  Gilbaugh  v.  West  etc.  Co.,  64  N.  J.  Eq.  27,  53 
Atl.  289;  Seastream  v.  New  Jersey  Exhibition  Co.  (N.  J.  Eq.),  58 
Atl.  532. 


§  542  EQUITABLE  REMEDIES.  932 

In  the  following  cases  injunctions  were  refused  because  the  plaintiff 
failed  to  show  special  damage:  Taylor  v.  Portsmouth  etc.  Co.,  93  Me. 
193,  64  Am.  St.  Eep.  216,  39  Atl.  560;  Buck  etc.  Co.  v.  Lehigh  etc. 
Co.,  50  Pa.  St.  91,  88  Am.  Dec.  534;  Pearson  v.  Allen,  151  Mass.  79, 

21  Am.  St.  Eep.  426,  23  N.  E.  731;  Schall  v.  Nusbaum,  56  Md.  512; 
Osborne  v.  Brooklyn  etc.  Co.,  5  Blatchf.  366;  Currier  v.  Davis,  68 
N.  H.  596,  41  Atl.  239;  Gulick  v.  Eisher,  92  Md.  353,  48  Atl.  375; 
Van  Wegenen  v.  Coouey,  45  N.  J.  Eq,  24,  16  Atl.  689;  Black  v. 
Philadelphia  etc.  Co.,  58  Pa.  St.  249;  Bosworth  v.  Normon,  14  E.  1. 
521;  Georgetown  v.  Alexandria  etc,  Co.,  12  Pet.  91,  9  L.  ed.  1012; 
Bigelow  V.  Hartford  etc.  Co.,  14  Conn.  565,  36  Am.  Dec.  502;  O'Brien 
V,  Harris,  105  Ga.  732,  31  S.  E.  745;  Coast  Line  R.  E.  v,  Cohen,  50  Ga. 
451;  Hay  v.  Weber,  79  Wis.  587,  24  Am.  St.  Eep.  737,  48  N.  W.  859; 
Hartshorn  v.  South  Eeading,  3  Allen,  501;  Pittsburg  etc.  Co.  v. 
Cheevers,  149  111.  430,  37  N.  E.  49,  24  L.  R.  A.  156;  Manufacturers 
etc.  Co.  V.  Indiana  etc.  Co.,  155  Ind.  566,  58  N.  E.  851;  Ehynier  v. 
Fretz,  206  Pa.  St.  230,  98  Am.  St.  Rep.  777,  55  Atl.  959;  Parsons  v. 
Hunt  (Tex.  Civ.  App.),  81  S.  W.  120.  See,  also,  Dennis  v.  Mobile  & 
M.  R.  Co.,  137  Ala.  649,  97  Am.  St.  Eep.  69,  35  South.  30  (citing 
Pom.  Eq.  Jur.,  §§  1347,  1349,  1350);  George  v.  Peckham  (Neb.),  103 
N.  W.  664. 

In  Whitfield  v.  Rogers,  26  Miss.  (4  Cush.)  84,  59  Am.  Dec.  244,  it 
is  said  that  one  who  suffers  from  a  public  nuisance  in  common  with 
others  may  enjoin  it  without  showing  special  damage.  And  the  same 
thing  was  held  under  statutes  in  Milhiser  v.  Willard,  96  Iowa,  327, 
65  N.  W.  325;  Carleton  v.  Rugg,  149  Mass.  550,  14  Am.  St.  Rep.  446, 

22  N.  E.  55,  5  L.  K.  A.  193. 

On  the  general  subject  of  public  nuisances,  see,  also,  ante,  chaptei 
XXI, 


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